Windsor Framework (Retail Movement Scheme) Regulations 2023

Baroness Suttie Excerpts

Wednesday 18th October 2023 Lords Chamber

[Baroness Suttie (LD)]

My Lords, this has been an at times impassioned debate and we have heard comprehensively, I think it fair to say, from the DUP and one point of view. I listened carefully to the many points made by the noble Lord, Lord Dodds, and his colleagues. While I have some genuine sympathy with many of his concerns, I none the less think that the Windsor Framework, as the recent report from the Northern Ireland Protocol Sub-Committee said, marks a significant step forward and is an improvement on what went before. It is far from perfect, but, as we have said many times from these Benches, these proposals continue to stem from incompatible promises that were made to the people of Northern Ireland as a result of Brexit.

There is also little doubt that there is a case for further pragmatic changes to be made in future, based on the realities of how these mechanisms work in practice for the people and businesses of Northern Ireland. Just so that I do not disappoint the noble Lord, Lord McCrae, I will give my statutory plea to noble Lords from the DUP: I genuinely believe that their case would be much more powerfully heard if there were a return to a functioning Executive and Assembly in Northern Ireland. Indeed, as Sir Jeffrey Donaldson said at the DUP conference last weekend:

“Having no say in our future will not be a recipe for success … having local institutions that succeed in delivering for everyone in Northern Ireland is an essential element of our case”.


I agree with that.

I will make a few brief comments on the regulations before us. It is deeply to be regretted that once again, an impact assessment has not been published. I agree with the Secondary Legislation Scrutiny Committee’s report, which said that, at the very least,

“basic information on the expected financial impact on businesses and the public purse should have been included in the explanatory memorandum”.

Even at this late stage, can the Minister commit to producing an assessment of the impact on businesses, so that we can have debates based on fact rather than anecdote? It is surely in the Government’s own interest to do so.

Like noble Lords from the DUP, I too question the decision to publish these regulations during the Summer Recess. Publishing them at a time when effective parliamentary scrutiny was not possible inevitably adds to our sense of distrust. Given that the Windsor Framework was agreed in February this year, it was surely possible to publish them before the Summer Recess. I seek reassurances from the Minister that the Government are confident that the temporary SPS infrastructure will be fit for purpose, given that the permanent infrastructure will not be ready until July 2025, as several noble Lords from the DUP said.

The Explanatory Memorandum states that the Government

“has considered and reflected engagement with interested stakeholders”.

Is it possible to publish a list of the people who were consulted? I remain convinced that transparency helps to generate the atmosphere of trust that has been so lacking during this whole process.

In conclusion, we on these Benches support the Windsor Framework and, by extension, the regulations we are debating today. However, I do understand many of the criticisms of the Government and the concerns expressed by the noble Lord, Lord Dodds, about the lack of transparency and consultation. I think it fair to say that the whole process leading to the Northern Ireland protocol and now the Windsor Framework has not exactly been a model of transparency and effective communication or consultation. I therefore hope that we can now move on to a more practical, pragmatic phase, learn from the mistakes of the past and make the Windsor Framework work for the people and businesses of Northern Ireland.

Retained EU Law (Revocation and Reform) Bill

Baroness Suttie Excerpts

Committee stage
Wednesday 8th March 2023 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will speak in support of the two amendments I submitted, along with the noble Baroness, Lady Suttie. Amendments 119 and 127 would ensure that substantial policy change with regards to human rights, equality or environmental protection in Northern Ireland may not be effected or take place via the exercise of delegated powers.

Last Thursday, I referred to the importance of protocol Article 2, which deals specifically with equality and human rights considerations in Northern Ireland. I have had several conversations, as has the noble Baroness, Lady Suttie, with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. They are concerned by the breadth of delegated powers provided under the Bill and the potential for the inadvertent breach of protocol Article 2 or the wider diminution of human rights, equality and environmental considerations via ministerial action, or inaction, in the absence of detailed parliamentary scrutiny. I ask the Minister whether that will be the case. What mitigations will be in place to ensure the protection of protocol Article 2?

The tight deadlines of the restatement of REUL by the end of 2023 and assimilated law by 2026, and the scale of the task to be achieved in that time, create a risk of gaps in legislative coverage. It may also contribute to further uncertainty and a potential breach of Article 2 if REUL essential to the no diminution commitment is not preserved or restated with set deadlines. A general convention on this principle was enunciated by the Constitution Committee, which reported in 2018 that

“we have identified a number of recurring problems with delegated powers. We have observed an increasing and constitutionally objectionable trend for the Government to seek wide delegated powers, that would permit the determination as well as the implementation of policy.”

That begs the comment that not much has changed in five years.

The Bill gives effect to a significant body of policy relating to human rights and equality, including employment legislation and EU regulations providing for the rights of disabled people, much of which will fall unless preserved or restated by Ministers. Under Clause 15(1), to which Amendment 119 refers, Ministers may revoke secondary REUL without replacing it, creating potential policy change with limited scrutiny. In addition to being given powers in subsection (2) to replace secondary REUL with provisions with the same or similar objectives, Ministers are also given significant additional powers to replace REUL with alternative provisions in subsection (3), which is of particular concern.

Problems will emerge in exercising these powers, as Ministers are not under a duty to consult on the REUL that is being replaced. Even though the powers granted are time-limited, both the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission believe that they are too widely drawn and will provide insufficient scrutiny, potentially leading to conflict with obligations under Article 2. Our Amendment 119 to Clause 15 would curtail the powers to revoke or replace secondary retained EU law affecting human rights or equality protections in Northern Ireland to ensure continuing adherence to the UK constitutional convention of providing for policy change via primary legislation, with technical and operational detail addressed in subordinate legislation.

Ministers need to engage with stakeholders, including both commissions, and human rights and equality organisations before using delegated powers to replace REUL. Will the Minister give an assurance that that will happen? I know that the noble Baroness, Lady Suttie, will refer to this issue, but will the Minister undertake to meet representatives of both commissions in Northern Ireland to discuss this issue further and help assuage their concerns?

Our Amendment 127, relating to Clause 16, provides for powers to be granted to Ministers to modify and amend REUL and restate or assimilate law or provisions replacing REUL as they consider appropriate to take account of changes in technology or developments in scientific understanding. The use of this power is subject only to the negative procedure, so changes made under it may not require active parliamentary approval. This power will not be time-limited. Our Amendment 127 seeks to ensure that the delegated power to modify legislation may be used for dealing with minor and technical matters only.

I have two questions for the Minister. First, will he meet with both commissions? Secondly, can he provide assurances today that the delegated powers in the Bill to modify legislation will be used to deal with minor and technical matters only, and that any substantive policy change to the law in Northern Ireland, including to human rights and equality law, will be made via the primary legislative process?

We must not forget that both commissions were set up under statute to manage Article 2 of the protocol, which deals specifically with equality and human rights and goes back to the Good Friday agreement. Can the Minister set out what consideration was given to ensuring compliance with Article 2 in the development of this Bill, and ensure that there will be no detrimental impact on the precious commodity of devolution in Northern Ireland or our special arrangements in Northern Ireland under the protocol and the Windsor Framework?

[Baroness Suttie (LD)]

My Lords, I rise to speak briefly to Amendments 119 and 127, to which I have added my name. Like my noble friend Lord Bruce, I apologise to the Committee: for a variety of reasons I was unable to attend the previous debates on devolution. The noble Baroness, Lady Ritchie of Downpatrick, has given detailed background to these amendments and made a powerful set of arguments in favour of them. I just want to re-emphasise a couple of the points she made.

As the noble Baroness said, these two amendments would ensure that no significant policy changes relating to human rights, equality or environmental protection in Northern Ireland could be implemented through the use of delegated powers. As it stands, the Bill does not give enough consideration to the very particular set of circumstances faced by Northern Ireland. There are multiple layers of existing international commitments through the Good Friday/Belfast agreement, the Northern Ireland protocol and now the Windsor Framework, and it is not entirely clear to me how all these commitments will fit in with the Bill and which will take precedence.

The Minister will be aware that, as the noble Baroness, Lady Ritchie, set out clearly, the Northern Ireland Human Rights Commission has expressed strong concerns about the sheer number and scope of delegated powers provided for in the Bill and the potential impact of the protocol on Article 2, which guarantees “no diminution” of certain human rights and equality protections. As the noble Baroness spelled out, the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are deeply concerned that the Bill as drafted may accidentally or otherwise result in breaches of Article 2 of the protocol. Article 2 touches on a range of equality and employment rights protections that could be unpicked, not least because it is open to a certain degree of interpretation.

These concerns about the potential impact on Northern Ireland are exacerbated by the continuing absence of an Assembly or Executive in Northern Ireland. A functioning Executive and Assembly would have provided an additional layer of oversight and scrutiny in safeguarding Article 2 of the protocol. As a result of the lack of a Northern Ireland Executive, the Northern Ireland Civil Service is already extremely stretched. The Bill will almost certainly impose an extra set of burdens on it, not least given the unrealistic timescales involved.

I strongly support the request from the noble Baroness, Lady Ritchie, that the Minister meet representatives of the Northern Ireland Human Rights Commission in order to hear at first hand their very real concerns. I look forward to hearing the Minister’s response.