Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

I regret the Bill before us this evening. On its passage through this place, I will oppose the provisions in it, on both legal and political grounds.

My starting point is that we cannot resile from or breach an international agreement that we freely entered into only three years ago. Moreover, the protocol is not a standalone agreement. It forms the centrepiece of the EU withdrawal agreement. By pursuing this Bill today, we risk reopening the whole agreement on which we left the European Union. In summing up the debate, what assurance can my noble and learned friend Lord Stewart, the Advocate-General for Scotland, give us that there will be no retaliatory measures following the passage of this Bill? I do not believe that he or the Government are in a position to do so. What I fail to understand is why those on these Benches who negotiated the protocol and the EU withdrawal agreement now jeopardise the very foundations on which they were built.

Politically, I welcome the positive engagement that the Prime Minister has undertaken with our European neighbours in attending the Prague summit of the European Political Community. I welcome the fact that—as my noble friend Lord Ahmad said in a conversation that I am pleased he took the time to have with me yesterday—the mood music has indeed changed. He gave an assurance to the House today that technical discussions on the protocol between the UK and EU have commenced, with a view to resolving the issues where they are not seen to be working under the protocol. I note that, in his words, the tone is cordial and that substantive practical measures are being considered.

The economy of Northern Ireland has flourished in the past three years. The economic activity has increased at a higher rate of GDP than that enjoyed in the rest of the United Kingdom. There must be a reason for that, and I suggest that it might be that Northern Ireland remains within the single European market.

As my noble friend Lord Howard put to the House this evening, the doctrine of necessity is not appropriate in the context of this Bill. Perhaps that legal basis has been chosen so that the Government can adopt a select, pick-and-mix approach to those areas where they believe that the protocol is not working, as opposed to those areas where they believe that it is working quite well. The fact that Article 16 has not been chosen as the legal basis proves in my view that the protocol has not fundamentally broken down.

I associate myself entirely with those such as my noble friend Lady Altmann and others in the Chamber today who have said that the Bill will allow an unacceptable level of delegated legislation. I also support the comments made by the noble Baroness, Lady Doocey, who described the mess of dual regulation that will flow from the provisions of the Bill before us this evening. I share her concern for what the Bill will mean for dairy movements between Northern and southern Ireland. I will add that there are other implications for farmers. I ask my noble and learned friend the Minister why the trusted trader scheme, the digital customs arrangements and data sharing have never been realised; why the principle of equivalence has never been agreed, to the detriment of many UK exports; and why the nonsensical prohibition of exports of seed potatoes into the EU and Northern Ireland from Britain remains in place.

Never in recent history have there been more pressing reasons for co-operation between European nations, because of the hostilities in Ukraine and the global threats to energy and food security. I urge the Government to prioritise negotiations on the protocol over the provisions of the Bill and to pause their proceedings after Second Reading today. I sympathise with the arguments put forward on democratic deficit by the noble Lord, Lord Dodds, and other noble Lords—who I consider noble friends—on the Democratic Unionist Benches. Those arguments were as valid at the time that the protocol was adopted as they are now. Perhaps the tragedy is that the Government of the day forged ahead with what this Government now consider to be, in part, a flawed agreement.

Negotiations are a two-way process. I very much welcome that current negotiations have commenced. I cannot support the Bill this evening. I will give it a Second Reading but I hope that it goes no further at this time. I urge the Government to think again and pause the Bill after today.

Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

To pick up the noble Lord’s point about the CJEU, the Belfast/Good Friday agreement is based, as we have heard, on the consent of both communities. It is part of a package, along with VAT and state aid rules, that causes unionists to feel less connected and less part of the United Kingdom. As your Lordships have heard in the course of the debate today, all unionist parties cited the CJEU as a key driver of a major democratic deficit. This is not a hypothetical issue; there have been seven separate infraction proceedings brought against the United Kingdom by the EU, covering issues such as value-added tax, excise, pet passports and parcels. We consider it inappropriate for the CJEU to be the final arbiter.

[Baroness McIntosh of Pickering (Con)]

I listened very carefully to what my noble and learned friend said, but the situation remains the same today, as the noble Lord, Lord Pannick, set out, as it was on the day that the Government claimed to have an “oven-ready deal”—I think those were the words—of which the protocol was an integral part. It is a cornerstone of the EU Withdrawal Agreement and, as the noble Lord, Lord Pannick, has stated, the remedy is in the protocol. So it is very unfair for the Members on the DUP Benches to be put in this position, but that is the position that was sold to both Houses.

[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.

Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

Debate on whether Clause 1 should stand part of the Bill.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful for this opportunity to discuss and debate whether Clauses 1, 2 and 3 should form part of this Bill. I am most grateful to the noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, for their support for all three stand part notices and the noble and learned Lord, Lord Judge, for his support for the proposition that Clauses 2 and 3 should not stand part of the Bill.

I have listened very carefully to the earlier part of the debate and obviously some of the themes will be repeated in debating this group. At Second Reading, reasons were explained as to why the protocol may not be working, and I think the noble Lord, Lord Dodds, spoke at some length on his view of why that is the case. I have had a number of emails from Northern Ireland since I tabled these notices and I would like to say at the outset that the reason for my tabling them is not to deny that the protocol is not working. That is not their purpose. What I am trying to understand, in debating whether these clauses should stand part, is the Government’s thinking of the legal base and to press the Minister further.

I would like to quote two paragraphs from the report which I believe was published today by the Constitution Committee of the House. In particular, paragraph 15 on page 4 states:

“We do not accept the Government’s reliance on the doctrine of necessity as justification for introducing legislation that disapplies its obligations under international law. The doctrine of necessity is narrowly construed and applicable only in exceptional circumstances, which have not been satisfied in this case.”


Further, paragraph 18 also on page 4 of the report states:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments. The Government’s reliance on the doctrine of necessity does not justify introducing this Bill. This raises the question of whether ministers might be thought to have contravened their obligation under the Ministerial Code to comply with the law, including international law.”


I shall also refer to when this was debated in the other place on 13 July. My honourable friend in the other place, Bob Neill, the Member for Bromley and Chislehurst, stated:

“this is an unusual and rather exceptional Bill, and not necessarily in a good way. If fully brought into effect, the Bill would lead to the United Kingdom departing unilaterally from an international agreement and therefore breaking its obligations under both customary international law and the Vienna convention on the law of treaties, which is a grave and profound step for any Government to take.

I recognise that there are circumstances in which that step can be taken, and the Government asserted on Second Reading that the operation of the Northern Ireland protocol gives rise, or potentially gives rise, to those circumstances. The essence of it, though, depends on applying a factual evidence base to a legal test. The legal test in this case is essentially the international customary law convention of necessity, which is now enshrined in article 25 of the articles on state responsibility, which were adopted by the International Law Commission in 2001 and are recognised by the UN General Assembly, by our Government and by the international community as an authoritative statement of the law. Article 25 sets out that necessity may be invoked if certain tests are met. The point of these amendments is to say that if the Government, or any Government, were to take that step, they should do so upon the most compelling grounds, so that the factual basis for their actions met the legal test. The reputational consequences, politically, internationally and legally, are very significant, so this should be done only when that is thoroughly tested and set before this House to be tested.”—[Official Report, Commons, 13/7/22; col. 365.]


That was from my honourable friend next door, Bob Neill, who chairs the Justice Select Committee in the other place.

At Second Reading and earlier, the Advocate-General referred to the legal advice that was published by the Government. I quote from the Northern Ireland Protocol Bill UK Government Legal Position:

“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the non-performance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”


In my view, for reasons that were well rehearsed at Second Reading and earlier today, that is not an appropriate legal basis. I ask my noble and learned friend the Advocate-General to set out why the Government have reserved their position on Article 16 and have not brought it forward as the more appropriate legal base at this time.

The Law Society of Scotland has also been instrumental in my bringing forward these clause stand part debates. In its view,

“The Government do not rely on Article 16 of the NI Protocol to justify the Bill. That Article would entitle the UK Government to take unilateral ‘safeguard measures’ in certain circumstances but those measures ‘…must be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation’.


Instead, the Government argues that these provisions do not breach international law because the situation in Northern Ireland is such that, under the doctrine of necessity in international law, any: ‘non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law’”.


The Law Society of Scotland’s quotations are from the UK Government’s legal advice, which I quoted from earlier.

I believe that the Government have failed, and I regret to say that my noble and learned friend the Advocate-General has failed as yet to state why this doctrine of necessity satisfies the legal test which is understood in that regard. I again press my noble and learned friend. I am not asking him to bring forward Article 16—though I realise that, as we heard earlier from the noble Lord, Lord Dodds, the protocol is perhaps not working in a way that the Government and those representing Northern Ireland would have wished. If that is the case, why have the Government not taken what I believe is the more appropriate measure, Article 16, in that regard?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for canvassing that. Again, I accept that it is an important point, as are all those that have been made around your Lordships’ House today.

Not all principles of international law are tested before a court, and acceptance by the international community of a particular practice, or codification by relevant institutions, as in the articles on state responsibility, can provide very significant precedent. Necessity provides a justification for non-performance with specific terms of the protocol, for as long as the circumstances justifying necessity persist. That relates to the temporal point which the noble Lord makes. The relevant circumstances could last for a significant length of time, so it is not necessarily a short-term justification.

[Baroness McIntosh of Pickering (Con)]

I am grateful to have had the opportunity for this debate. I regret to conclude that, despite the affection, respect and regard that I have for my noble and learned friend, and the fact that we are both members of the Faculty of Advocates—albeit I am non-practising—the Government’s legal position remains confused and flawed. On my specific question, the Advocate-General said in a previous debate that the Government reserved the right to invoke Article 16 as the legal base but did not give us the basis on which they would seek to do that. That was regrettable.

I am grateful to all who have spoken, particularly from the Front Benches opposite. I thank the noble and learned Lord, Lord Judge, for responding to the points made by the noble Lord, Lord Bew, more adequately than I could possibly have done. To all those who have spoken from the Northern Irish perspective, the House is absolutely agreed that the protocol is not working. I have had briefs from the National Farmers’ Union, NFU Scotland, and the Food & Drink Federation, which would particularly like to see that matters regarding trade work as smoothly as possible, bearing in mind that the food industry is probably the largest manufacturing industry; it is larger than the car industry. It is a very big sector taken with food, farming and farm production.

So I regret that we have been put in this position and that the Government are wilfully seeking to breach an international agreement and public international law that they freely entered into. I do not intend to press this matter any further this evening, but I reserve the right to revert on Report.

Clause 1 agreed.

Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

as the noble Lord, Lord Pannick, has said.

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

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

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

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

Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I simply express my very strong support for what the noble and learned Lord has said: there is absolutely no limitation on the power conferred on the Minister to make

“any provision which the Minister considers appropriate”.

There is no test here of necessity or a requirement that the Minister should be satisfied that there are reasonable grounds for thinking that the regulation is necessary. In any event, the regulation is both unamendable—as all regulations are—and subject to the negative procedure, which means in effect that it will never be discussed. So it is thoroughly bad. I have no doubt that it is for that reason that the Joint Committee recommended that this particular power should be removed from the Bill, and if I am given the chance to vote for that view, I shall do so.

[Baroness McIntosh of Pickering (Con)]

My Lords, in the spirit of trying to help the Government, I will repeat what I said in relation to an earlier group of amendments: it would help the Committee, as well as the other place, if the Government could give us an indication of the type of regulations that they have in mind, so that we do not have this blanket provision before us today. There is still time to do that.

I will also ask a question of information. I understand that the “provision” to which the noble Lord, Lord Purvis, refers in removing it from this particular clause does not apply to agricultural subsidies. So, if it is the case that agricultural subsidies are still going to apply, who is in a position at the moment to decide on that, and within what timeframe would that be?

[Lord Leigh of Hurley (Con)]

My Lords, I have been looking at Clause 12 through a particular prism. As my entry in the register of interests discloses, I have a particular interest in financial services. I am also an investor in various enterprise investment and seed enterprise investment companies, which I will refer to as EIS and SEIS companies, and venture capital trusts. For those who are not aware, EIS schemes are those which allow UK investors to invest in UK companies and deduct the amount invested in those companies against their income tax at prescribed rates to encourage investment in private companies.

For some time, I have been frustrated that these truly excellent schemes have been hampered by restrictions. The schemes are hugely popular. EIS has helped some 66,000 companies in the UK in total, with some 3,755 companies raising over £1.5 billion last year alone. Since 2018, VCTs have made some 1,000 investments, raising £1.7 billion, of which 45% were less than £1 million. So I am very concerned by anything that threatens the existence of these schemes and am keen to find ways of enhancing their effectiveness. There are, however, restrictions and regulations reducing the opportunity for UK businesses to raise this vital small equity for essentially risky enterprises, and I have been concerned that these restrictions have in part been due to the requirements of EU state aid rules.

The enormous success of the EIS and VCT schemes is very much a British phenomenon and probably viewed with some mistrust by the EU, given our tremendous track record in starting and growing new UK businesses. In fact, most businessmen and investors I have spoken to are amazed to discover that it is governed by EU state aid rules. Fortunately, at the moment we have EU approval for the design of the EIS and VCT schemes under Article 107 of the Treaty on the Functioning of the European Union, and the smaller SEI schemes, due to their size, fall within Article 21 of the general block exemption regulation. However, as we decide how to plough our own path post Brexit, it is important that we are entirely free to create our own rules concerning subsidies that might amount to state aid—within, of course, the constraints of WTO and other commitments.

As mentioned by the noble Lord, Lord Purvis of Tweed, we now have our own Subsidy Control Act but, under the protocol, some EU state aid rules still apply. I can see the issue, namely that the EU is worried that a company based in Belfast has cheaper finance than a competitor in Dublin—but, frankly, that should be our choice and the choice of other countries to offer incentives to finance their businesses.

Why do we have this problem? As Andrew Harper helpfully wrote in the British Tax Review in autumn 2020, the two sides promote opposing perspectives: the EU very much promulgating its state aid regime on the basis of the level playing field and the UK adopting the subsidy language of the World Trade Organization. This is much more than a semantic or linguistic distinction. It is one of substance, both in the scope and the enforceability of the rules.

In these circumstances it appears sensible to point out the key issues that could arise. Without Clause 12 —and I am aware that there is a stand part debate following—first, the EIS and VCT schemes as they operate in Northern Ireland will presumably have to remain fully EU state aid compliant because of EIS companies and VCT investees based in the Province trading with the Irish Republic or the wider EU. Secondly, following from that, barring the UK Government being prepared to countenance two separate systems within the UK, the EIS and VCT schemes as they apply to England, Wales and Scotland will be difficult to modify.

Thirdly, if, post transition, these schemes were to diverge as between Northern Ireland and the rest of the UK, what is the position in the case of, say, an English EIS company raising scheme funding that would be in excess of that sanctioned by EU state aid rules? If that English company then sends its goods to Northern Ireland, where potentially they can be traded with the south or the rest of the EU, how will that be allowed to happen? It simply cannot make sense to exclude Clause 12.

Northern Ireland Protocol Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I just wonder what Clause 18 is supposed to mean. Does it really mean that the Minister of the Crown may do whatever he likes? Yes, it does; that was what we were discussing on Wednesday, when noble Lords and the Government listened to me. I had a dream over the weekend that the Minister today is going to get up and say, “Lord Judge, you were entirely right on Wednesday. We have changed our minds: we are going to put this Bill into proper shape”.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to ask my noble friend the Minister what discussions there have been with the devolved Assemblies and Parliaments as to the process that will be used if these regulations are brought forward.

[Baroness Altmann (Con)]

My Lords, I support Amendments 36 and 38 for the reasons that have been so eloquently set out already—I do not think that I need to repeat them. The idea that Parliament is passing a law to allow a Minister to do whatever he likes without coming back to Parliament seems to be quite breathtaking. That is nothing to do necessarily with Northern Ireland or Brexit; that is to do with our parliamentary democracy. On the question of whether Clause 18 should stand part of the Bill, I would certainly support its removal.

I confess that I find it difficult to accept that just changing “appropriate” to “necessary” will actually sort out the problem that is inherent in so many of the measures in this Bill, because a Minister could easily just say that they are doing it because they think it “necessary”. Who is going to be able to challenge that? The law would still be changed.

I support the idea put forward by the noble Baronesses, Lady Ritchie and Lady Suttie, of at least having approval from the Northern Ireland Assembly. This would once again be an example of the British Government doing something with Northern Ireland, rather than to Northern Ireland—as the current wording would imply.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I have reached the same conclusion as the noble Lord, Lord Cormack, but via a slightly different route. I heard the noble Baroness and the noble Lord refer to talks proceeding amicably and constructively. The noble Lord, Lord Ahmad of Wimbledon, has regularly assured us from his own involvement in the talks that they are proceeding satisfactorily and are in no way being derailed by this Bill.

I am miles away from the action, of course—like the noble Lord, Lord Dodds of Duncairn, I would be very grateful if the Government could find the time to give us some reports on the talks from time to time—but I get a rather different impression of the view in Brussels. My impression is that there is not a great deal going on in these talks, and that the officials involved do not have the kind of instructions which give them discretion to do any negotiating. My impression is that British Ministers are not particularly hands-on, that they are not very closely involved in the talks and that, in fact, no real political input and impetus has been given as yet.

On the EU side, I think there is a natural tendency to wait and see whether the arrival of a new Government and a new Prime Minister in Britain will bring about any changes in the British position. The Commission has succeeded in persuading the member states that the CJEU cases against us can be left in limbo for the moment; a number of member states would have preferred to proceed to having these cases heard, but they stay in limbo and there seems to be a sort of consensus on that. But there is absolutely no pressure that I can detect among member states for any softening of Šefčovič’s mandate or any change in the instructions he is getting, perhaps partly because they are waiting to see whether there is some change in the instructions our people have. I detect no sign of anybody believing that Šefčovič’s instructions will change while the threat of this Bill hangs over the negotiations.

In my view—I repeat that I am miles away from the action, so I may be quite wrong—the only real debate among member states is whether contingency planning should be started on their side and whether it is this Bill reaching the statute book or actual use of the powers it contains that should trigger resort to action. The action would of course be the end of the talks and the necessary review of the terms of the trade and co-operation agreement. I think everybody believes that in Brussels. As the noble Earl, Lord Kinnoull, reminded us on our last day of Committee, we committed ourselves in the TCA to carrying out our obligations as in the withdrawal agreement, which include the protocol. So if we were to use the powers in this Bill or, as some say—I am among them—put this Bill on the statute book, we would be in breach of not just the withdrawal agreement but the TCA.

So I think the debate is about contingency planning for that eventuality, rather than for any change or softening of the EU position in the talks. Therefore, it seems to me, we should recognise that what we are doing here, if we were to pass this Bill, is setting ourselves up for a rather serious trade war with the EU and for the return of all the problems in Northern Ireland that will result from Northern Ireland no longer being a member of the single market. We will go back to a different form of frontier problem, from which the protocol was designed to have us escape.

So I reach exactly the same conclusion as did the noble Lord, Lord Cormack, but by a slightly different route. I do not think that the talks are going particularly well, and I hope that the noble Lord, Lord Ahmad, will act on the promise that he made on our last day in Committee to see if he could ensure that we receive progress reports on the talks. Though I am miles away from the action, it seems to me that, if we proceed with this Bill, we are heading straight into a thunderstorm that will sink the ship.

[Baroness McIntosh of Pickering (Con)]

Before the noble Lord sits down, could he go one step further and ask my noble friend the Minister, in responding to this debate, to say whether he agrees with the analysis of the noble Lord, Lord Kerr, which I do, that we would be in breach not only of the withdrawal agreement but of the trade and co-operation agreement? It would be very good to get that on the record at this stage. Will he just go so far as to press the Minister, in summing up, to say whether he agrees with his analysis?

[Lord Cormack (Con)]

He has done so.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

71: Clause 26, page 15, line 45, at end insert—
“(3A) Regulations under subsection (3) may not bring any such provision into force before 31 December 2026.”Member’s explanatory statement
This amendment delays the coming into effect of most of the legislation until 31 December 2026.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful for the opportunity to move this simple amendment. Basically, I am suggesting that the Bill, if it were to carry, would not enter into force before 31 December 2026.

On a number of occasions my noble friend Lord Ahmad has repeated that it is the Government’s firm belief that by proceeding with this Bill on the Northern Ireland protocol, they are not jeopardising our relations—particularly our trade relations—with the European Union. Personally, I agree very much with the sentiments of the noble Lord, Lord Kerr, who said earlier that the Bill not just breaches the EU withdrawal agreement but would breach the terms of the trade and co-operation agreement agreed with the EU following our departure.

Today we hear from Egypt that the Prime Minister had his first meeting with the President of the European Commission, Ursula von der Leyen. At the same time, we have also heard that European Commission Vice-President Maroš Šefčovič—apologies for my pronunciation —has stated that there would clearly be ramifications for trade should the Government persist with this Bill.

This amendment is, if you like, a get-out clause for my noble friend if he were to follow my advice and better judgment and pause the Bill at this time. There are other ways of dealing with the very real sentiments raised by my noble friends on the DUP Benches and others, and I do not believe that the Bill is the right vehicle to do that. It is my firm belief that the best way forward is through negotiation, not intimidation. I am sure my party would wish to distance itself from any form of intimidation, in whatever shape or form it comes.

That is my plea to my noble friend the Minister and the Government at this time: if they persist with the Bill, they should agree with Amendment 71 that the Act would not come into effect before 31 December 2026. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank my noble friend for moving the amendment. I understand and acknowledge that she wishes to create the space for negotiations, but the Government have passed the Bill through the other place and introduced it to your Lordships’ House because of the situation in Northern Ireland. For more than four years the situation has continued in a very challenging way. Furthermore, it is the Government’s view that this amendment, if agreed, would remove their ability to rapidly implement any new agreement via Clause 19.

As my noble friend will be aware—we have discussed it several times during the passage of the Bill in Committee and at Second Reading, and it was a point made by several of our colleagues and my noble friends from Northern Ireland—the Assembly has not sat since February and there is ongoing business disruption across the economy. Much of this can be aligned to the unworkability and lack of operability of the protocol.

From our perspective as the Government, it would be a sad dereliction of our duty if we were just to let the current situation continue. Although I hear what my noble friend says—she expressed her opinion about my right honourable friend meeting the President of the European Commission and our continued discussions with the EU Commissioner leading the negotiations—there is nothing more I can really add to what I have said already.

From my perspective and that of the Government, we do not feel that this amendment would be helpful to our current position. Therefore, we cannot support it and I hope my noble friend will be minded to withdraw it.

[Baroness McIntosh of Pickering (Con)]

I am grateful to my noble friend for his response and I will consider what to do between now and Report. I believe this amendment would give the possibility of reaching consensus and agreement in Northern Ireland, so that democratic legitimacy can be returned, and enable us to meet our international obligations. For the moment, I beg leave to withdraw the amendment.

Amendment 71 withdrawn.