Northern Ireland Protocol Bill

Lord Ahmad of Wimbledon Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

That the House do now resolve itself into Committee.

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

My Lords, I beg to move.

[Lord Howell of Guildford (Con)]

My Lords, before we proceed with this Committee, can we be assured that there is not a plan to alter radically or even withdraw the Bill? Your Lordships will remember that with the Energy Security Bill we all put in weeks of work, as did the Government and everybody else, only for the whole Bill to be scrapped. It would be nice now to know whether we are going ahead with a Bill that will be pursued and not altered or scrapped as well.

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

My Lords, I acknowledge that, as with the previous group, we have perhaps gone wider than the specific amendments. In the interests of time, and since we need to make progress on the Bill, I am not going to go into the more general arguments. My noble friends on the Front Bench and I have articulated several times the Government’s position on the need to proceed with the Bill, and those circumstances remain. I am reminded that when the debate started this afternoon, my noble friends Lord Cormack and Lord Howell, I think, among others, returned to the Front Bench the point about the necessity—to use a legal term, but not in its application to the Bill—to proceed with it. I assure the House as one of the three Ministers responsible for the passage of the Bill that, while in the middle of a reshuffle, our weekends—I speak for all three of us—have been focused on the detail of the Bill and proceeding with it. The fact that the three of us are still present reflects the Government’s current intent, because we feel that this is necessary.

I have heard the arguments again today, many of which were articulated at Second Reading and in our debates so far in Committee, and I understand the points made by the noble Lord, Lord Pannick. I listened carefully on the issue of Article 16, and he is of course right. I know that the noble Lord has a different perspective, but that is why I say that we have never said that Article 16 is off the table. It remains an instrument available to the Government within the treaty that we have signed, as noble Lords have said. However, there is a reality, which was articulated very well just now by my noble friend Lord Dodds. The reality is what businesses are now facing. The protocol is not working and if is not working in the interests of any part of the United Kingdom, as its Government we are obligated to ensure that we provide a practical solution which works in the interests, first and foremost, of the citizens of our united United Kingdom. That remains the primary intent of the United Kingdom Government.

I will pick up on some of the specifics. In introducing his amendments, the noble Lord, Lord Purvis, asked about published statistics. What I can share with the noble Lord is that HMRC has published summary data on the numbers of declarations, their associated value and the number of businesses importing goods into Northern Ireland from Great Britain in 2021. I will give a couple of summary statistics, if I may: in 2021, over 1 million full declarations were declared to HMRC. The number of businesses associated with those full declarations was 10,400, while 100 GB businesses have stopped supplying the Northern Ireland market already. The requirement to follow EU rules is one of the factors behind this situation, as was alluded to in the detail of the contribution of my noble friend Lord Dodds.

I turn to the amendments in front of us, including Amendment 7 in the name of the noble Lord. As many noble Lords noted, a number of the amendments are on the recommendations of the Delegated Powers and Regulatory Reform Committee, to which the Government will respond, as I said earlier, as they will to the report of the Constitution Committee. I have checked with officials and we will certainly seek to respond in advance of Report.

I acknowledge the reservations raised today. The noble and learned Lord, Lord Judge, is someone who I respect greatly and have great admiration for. I assure noble Lords that in our engagement on the Bill, it did not surprise me at all that the majority of our discussions began, as he said, “Well, Tariq, you know what I’m going to raise with you.” Yes, the Bill has many clauses where the Government seek to take certain powers because we believe that they are necessary. The Government remain of the view that these delegated powers are required, and will enable secondary legislation to set out precisely the UK or non-EU movements that will be excluded by Clause 4(2).

The operation of the protocol, as we heard from the noble Lord, Lord Bew, and my noble friends Lord Dodds and Lord Lilley, has shown that the manner and nature of the issues faced by businesses in moving goods have not been static over time. There needs to be flexibility to respond to the changing circumstances in order to maintain the effective flow of goods between Great Britain and Northern Ireland. As noted in the 2025 UK Border Strategy, we are seeing long-term shifts in how goods move; for example, through increasing e-commerce and advances in technologies for Governments to manage flow. It is therefore appropriate that means are available to adapt arrangements to be fit for purpose at all times. In the Government’s view, this power is drafted with the appropriate breadth for them to confidently address issues which may arise from time to time that disrupt businesses.

I listened carefully to the noble Earl, Lord Kinnoull, on the importance and appropriateness of making secondary legislative provision and what the alternatives would be. The EU legal acts in the first 10 points in Annex 2 alone are over 1,500 pages in length. Before one even comes to the remaining 37 points contained therein covering other pieces of EU law, that is already longer than some of the longest pieces of legislation currently on the statute book. To draw a totally different example, the Companies Act 2006 is 1,260 pages long. It would therefore not be appropriate, in the Government’s view, to have this amount detailed in primary legislation.

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[Baroness Ritchie of Downpatrick (Lab)]

The Minister is referring to the dual regulatory regime. I would like the Government to understand that this will work for some businesses but for other types of industry, such as the dairy and beef industries, it will not. It may be useful for the Government to take further evidence from those industries in Northern Ireland which have practical, on-the-ground experience of, for example, where there is a need for a department of agriculture certificate to certify that milk is milk and is of perfectly good quality. That needs to be addressed adequately.

[Lord Ahmad of Wimbledon (Con)]

My Lords, it would be a choice for that particular business or sector, as my noble friend Lord Caine, has just reminded me, but I take on board the noble Baroness’s point. That is what I have already suggested. When I was preparing for the sitting today, I asked officials if there were different approaches to different sectors. She has highlighted them. It would be helpful on the specifics, and I will certainly take that back to the department, but I have already offered that we could provide more insight and explanations.

On consultation, which the noble Baroness alluded to, we are doing exactly that. Our colleagues in the Northern Ireland Office are speaking with businesses and the practical issues are, where necessary, being highlighted so we can address them. As we proceed with the Bill and have further discussions, the ultimate objective is to ease the burden on the ability of businesses from Great Britain to operate effectively and in a fluid nature within the context of the wider United Kingdom, inclusive of Northern Ireland.

Clause 4(4) sets out a non-exhaustive list of criteria which may be considered when prescribing those movements. It is these “qualifying movements” which will be ultimately entitled to enter our proposed green lane. Clause 4(5) provides a power under which a Minister can make regulations about the meaning of those goods which are heading for the UK, or which are non-EU destined, including by providing the basis under which a trader registered under a prescribed scheme, such as trusted trader scheme, can state whether goods being moved are UK or non-EU destined.

Finally, Clause 4(6) defines the meaning of “qualifying movement” for the purposes of the clause. Qualifying movements are those from any place other than the EU to Northern Ireland and the reverse, including movements within the UK and movements of goods by sea into ports in Northern Ireland. Clause 4 is right at the heart of our intentions in rationalising the processes alluded to by the noble Lord, Lord Dodds, which are required when goods move into Northern Ireland. We have been clear that we do not believe it is appropriate to continue to require full customs and SPS processes when goods are not destined for the EU, and it is this clause that will allow us to put in place a more sensible regime. That is why I recommend that noble Lords allow this to stand part of the Bill.

[Lord Purvis of Tweed (LD)]

I thank the Minister for his response. We will get to SPS issues later, as well as some of the customs elements that the noble Lord, Lord Dodds, highlighted.

I thank the Minister for his information from HMRC, which I of course read before this debate—it is static information for one calendar year. One of the frequently asked questions under that data is:

“Does HMRC hold data on NI movements from GB before January 2021?”


The answer is:

“No, the collection of data for goods moving into NI from GB has only been required since 1st January 2021”.


The Minister then added anecdotal evidence, which the noble Lord, Lord True, told us that we should not use. Both things cannot equate: a static set of data for one calendar year does not necessarily demonstrate the implementation of the protocol, especially since the trader scheme would have operated under many of these declarations anyway—but we will no doubt pursue some of these matters later on.

I accept that the Minister is open with the offer of a briefing, but it is the draft regulations that we need to see; it is not briefing on what the theoretical operation of a dual regulatory system might be. We need to see the regulations that would operate that. In the previous group and on the first day in Committee, we heard that the Government have practical solutions, and the Minister has referred to them. But, as the junior to the noble and learned Lord, Lord Judge, indicated, an unprecedented breadth of regulating powers will be provided to Ministers. The noble Earl, Lord Kinnoull, was absolutely right: part of the unprecedented nature that is so egregious is that these will effectively be treaty amendments, and we have the well-established CRaG process for scrutinising and effectively approving treaty amendments.

Finally, the reason why all this is important—it addresses one element of the point from the noble Lord, Lord Lilley—is that the Government accept that they are breaching their commitments and that these are wrongful acts. The Minister shakes his head, but they have.

[Lord Ahmad of Wimbledon (Con)]

I am not clear on the noble Lord’s point. What have the Government accepted?

[Lord Purvis of Tweed (LD)]

The Government have admitted that these are breaches of the obligations under the protocol because they have invoked the defence of necessity for wrongful acts. You cannot invoke a defence for a wrongful act if you do not believe that you have committed a wrongful act.

[Lord Ahmad of Wimbledon (Con)]

But if the original instrument is not working in the first place, which it is not—

[Lord Purvis of Tweed (LD)]

Oh!

[Lord Ahmad of Wimbledon (Con)]

It is all very well to be critical. I accept the points that have been made about Article 16, but let us not open up that debate again. What specifically is the noble Lord’s proposal?

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[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.

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[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.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Minister for his reply—he can tell his kids that we are also doing trick or treat here, although I am not sure what the balance is between the tricks and the treats. I am grateful for his response and for the support of the noble Baroness, Lady Chapman, and the noble and learned Lord, Lord Judge, who is of course here in spirit if not in person.

I strongly agree with the noble Baroness. On a sensitive issue such as this, the powers that Ministers have should be absolutely necessary in order to deliver what they have said they want to deliver. They should not be any broader than that. But the Government have not formulated their policy yet, which is at the heart of the frustration. We are being asked to legislate to give powers to Ministers, but they have not said what they then want to implement. They have not indicated what the interaction with the Taxation (Cross-border Trade) Act will be or why HMRC will be given statutory powers which that Act does not provide it with. I do not believe that we should be in a position where we give in primary legislation the “level of flexibility”—as the Minister said—to Ministers when they have not explained to us what they want to do.

I do not think that the Minister has persuaded me at this stage. I welcome the noble Baroness’s commitment that, if her party wins power, they will not bring forward proposals such as this; on behalf of these Benches, I can give the same commitment that when we achieve power, we will not bring proposals such as this either. In the meantime, before Report or we achieve power, whichever comes sooner, I beg leave to withdraw the amendment.