European Union (Withdrawal Agreement) Bill

Lord Bruce of Bennachie Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord Teverson (LD)]

My Lords, the EU committee of which I am a member has spent a lot of time on Northern Ireland issues. Although I do not visit the Province regularly, I used to do business there and greatly enjoyed it; it is a fantastic part of the United Kingdom.

What really worries me goes back to what was said by the noble Lord, Lord McCrea: this denial by the Prime Minister that there is any problem here, when clearly there is. Yes, we have it in the protocol that the Province is to be part of the UK customs territory—but in reality it is part of the single market and the European customs union. It is de jure part of the UK and de facto part of the EU in terms of its economy.

The recent report by the EU committee stated:

“Notwithstanding the statement in Article 4 of the protocol that Northern Ireland is part of the customs territory of the UK, the practical implication of the protocol’s provisions on customs will be the introduction of a regulatory border for goods travelling from Great Britain to Northern Ireland. The introduction of such a border within the UK will have financial and political consequences”—


which is probably an understatement.

I was in the EU committee when the current Secretary of State for Brexit, Stephen Barclay, said, on the advice of his senior civil servants, that there would indeed be that border down the Irish Sea, and that there would be documentation; it would not be frictionless. So I find it very difficult to understand why we have this very trite statement, as always, by the Prime Minister, when that is not the case.

To emphasise what the noble Lord, Lord McCrea, said, I will quote what has been said today by the EU’s chief Brexit negotiator, Michel Barnier. He stated that the protocol on Northern Ireland outlined in the withdrawal agreement means that checks on goods moving from Great Britain to Northern Ireland would have to be in place. He said:

“The implementation of this agreement foresees checks and controls entering the island of Ireland. I look forward to constructive co-operation with the British authorities to ensure that all provisions are respected and made operational.”


We have not heard a great deal from the European Union on this issue. I suspect that it is very wary about entering the politics of Northern Ireland. But that silence has now broken, and it is very firm. So it would show respect to the Province if the Government could be honest about what is foreseen.

[Lord Bruce of Bennachie (LD)]

My Lords, I very much support the amendments moved by the noble Lord, Lord Hain, and I am very grateful for the detailed way in which he explained them. It could not be clearer; he covered pretty much every aspect. This has been reinforced by everybody else who has spoken. It is difficult to avoid the reality.

Let me first address the political dilemma. The Government have had an election, they have a majority of 80 and they can do what they wish in the House of Commons; we know that. The Minister has effectively got instructions that all amendments must be resisted. However, the Prime Minister’s personal reputation and integrity rest on this issue. He has explicitly said that there will be no checks—and in a sense, these amendments are trying to put into law the Prime Minister’s promise of what the protocol would mean. We all know the difficulty is that any analysis of the protocol does not square with the promise—unless the Prime Minister has got some way of explaining that which none of us has yet come across.

A useful analysis of the protocol has been produced by the Institute for Government, which makes it clear that the protocol means that while Northern Ireland will remain part of the customs territory of the UK, customs checks and controls will apply for goods moving from Great Britain to Northern Ireland because that ensures that customs checks or controls are not required between Northern Ireland and the Republic. That is the essence of the protocol in a nutshell.

The consequences of that, therefore, are that not only will there be checks but that exports into Northern Ireland from the rest of the UK will be subject both to customs checks and, potentially, tariffs. There is an argument that these tariffs could be reimbursable, but that immediately introduces a bureaucracy of having to regulate them, and apply, and when and how long that takes. So let us be honest; we are facing a dilemma.

As has been said, the Northern Ireland economy is one of small businesses and is vulnerable and fragile. For many of those businesses, the practicalities of dealing with this could be life-threatening and could effectively destroy their viability. Indeed, one begins to wonder how the pattern of trade might change, inasmuch as businesses in Northern Ireland may find that trading with the mainland of the UK is just too difficult; and, indeed, businesses on the mainland of the UK may decide that Northern Ireland is too much trouble. Somebody trying to order something online through Amazon may find that it does not supply Northern Ireland, or will only supply it at a premium, or will charge a tariff which may or may not be reimbursable. These are the kinds of complexities that we are facing and envisaging, and everybody who has spoken recognises that to be the case—and I think it is reasonable.

I do not envy the Minister’s position, but I would love him to have a conversation with the Prime Minister and say, “Prime Minister, you have categorically stated that there will be no checks or tariffs. It would be helpful if everybody else in the Government could have it explained to them how this is going to be achieved, because I have not come across anyone who yet knows how it can be done”. So the amendments are well-intentioned and constructive. They are about saying, “We have a promise and this is how it should be delivered.”

Given the Benches I am speaking from, I should make it clear that I accept that we are leaving the European Union at the end of January and that the Bill needs to be passed in good time and in good order. I certainly do not regard this as anything other than a genuine recognition of a crucial issue that needs to be addressed on behalf of the people of Northern Ireland. I do not have to repeat, but I will, that it has cross-party, business, and community support—literally, unanimity—across the entire Province that says, “Please help us through this dilemma.” I hope that the Government will recognise that they have an obligation to do so.

Perhaps I might raise one other slightly unrelated issue in relation to these clauses. The commitment to non-diminution of rights within the agreement is enshrined in Northern Ireland legislation—in other words, it applies to it—but there has been some concern, particularly in the debates we have already had about Henry VIII clauses and other clauses, that this does not apply to any other legislation passed by the United Kingdom Government. Does the Minister accept that if the UK Government can amend aspects of legislation in Northern Ireland—or, for that matter, elsewhere, but Northern Ireland in this context—the non-diminution of rights would be meaningless if UK law could compromise that and only Northern Ireland law is protected? I hope I have made myself clear and I would be interested to hear the Minister’s comments on that.

In conclusion, the Minister can be in no doubt about the feeling across the House. I have said, both publicly and privately to the Minister, that his engagement on these and all other issues is warmly admired and respected—there is no question about that. His commitment and sincerity in wanting to get the right results is not in doubt or in question, but he is defending a difficulty here on behalf of the Government.

He has between now and next week. It is probably a forlorn hope, but I think he should have a conversation with the usual channels and the Government to say that this issue is really causing a great deal of fractious difficulty and the Government need to show in very real terms that they are going to address it. If they could in some way or other accept these amendments or bring forward a government amendment that followed that through, a lot of mistrust might be evaporated and the situation might be regarded as one in which the Government have demonstrated a genuine determination to get to the right place, which is unfettered access.

--- Later in debate ---

[Lord Duncan of Springbank]

The important thing here is twofold. First, we agree on the destination—on where we are trying to go. Secondly, what we just said is that the amendments as drafted, from our position, undermine what we set out in the initial clause. We have said that the initial clause now delivers what we believe is right for Northern Ireland, both in terms of the wider dialogue and the ongoing evolution regarding the joint committee. That is why I would not propose replacing them with our own government amendments, but rather recognise the vitality of the original clauses.

I thank the noble Lord, Lord Hain, because he has put in place a very clear recitation of where he is coming from and, as he said very clearly, I anticipate that this matter will be pressed to a vote next week.

[Lord Bruce of Bennachie]

I want to pick up what was said about the United Kingdom’s customs rules being entirely under the jurisdiction of the United Kingdom—I paraphrase what I think the noble Lord said. However, the agreement is summarised as saying:

“The Joint Committee will establish further conditions under which goods coming into Northern Ireland from Great Britain would have to pay the EU tariff.”


This suggests to me that it is not in fact our exclusive responsibility, but will be jointly determined between the UK and the EU.

[Lord Duncan of Springbank]

In response to that, of course it will be our exclusive view in that negotiation to determine our own position as we respond to that. Again, it rests with us to try to move that in the direction in which we wish it to go.

Again, I am very grateful to the noble Lord, Lord Hain, for being so candid; I welcome that candour, as I always have. In winding up, I say that we need to be able to send the message to Northern Ireland that, through this process, there will be a deep dialogue with each of the affected parties and we will not place any prescriptive elements that will impact on their ability to determine the future that rests before them in terms of how their businesses will work. They need to have very frank discussions with the Government and ensure that, through each stage in that negotiation, there is transparency so that nobody is left behind or surprised, and the reality remains transparent for all to appreciate. I do not believe that it will be straightforward. It is important to emphasise that the protocol itself sets out very clear decisions, but there are still decisions which must be taken by the joint committee of the UK and the EU and which will have to be worked through as we go forward. There is no point in my trying to pretend that that will not be a challenging position.

The important thing to stress is that we are guided by certain principles that rest on the question of unfettered access. I was struck by the word “unfettered”; it is almost a Victorian term. Where did the notion of “unfettered” come from? What on earth is a fetter? It is a shackle, a thing that is linked around your ankles to stop you escaping. We are looking for a situation in which trade can continue in the customs area that the UK sits within, but which also recognises a democratic element in Northern Ireland, to ensure that it is content with the way this matter progresses in the Province of Ulster, and that businesses are content, too. With the newfound Assembly and Executive, this situation will ensure that Northern Ireland has a voice to register this content or discontent and that there is at no point a democratic deficit in Northern Ireland over what the protocol seeks to deliver or, ultimately, what Northern Ireland wants for itself. That will be important as a very strong check on where we go next.

European Union (Withdrawal Agreement) Bill

Lord Bruce of Bennachie Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Empey (UUP)]

My Lords, last week in Committee I supported the amendments in the name of the noble Baroness, Lady Ritchie, and others. It is only due to me being late getting to the office that my name is not on this amendment, but I support it nevertheless.

The Minister did his best in his letter. The only thing missing from it was a poetical quote; otherwise, he pretty well exhausted every lever at his disposal to make a silk purse out of a sow’s ear. I congratulate him on attempting to do it.

I have always felt, and have said to colleagues, that the key to what we are discussing today will evolve as we go through the rest of this year. The necessary parts of the negotiations will ensue, and we will see what happens. The Minister was kind enough to quote my widget example in his letter. It was merely to illustrate the enormous complexity and difficulties, and it does not immediately occur to me how we solve them. We spoke to the business community. Reference has been made to the letter that was sent to the Minister on 17 January. Not only is such a letter unprecedented, but I think it is worth mentioning who has signed it. It states:

“The amendments that have been laid down”—


those are the amendments we discussed in Committee—

“have the support of all the main political parties … and the broadest representation of the Northern Ireland business community. This level of common purpose and collaboration is unprecedented.”

It is.

“The intention of these amendments is not to seek subsidy or hand-out but, rather, to ensure that Northern Ireland businesses are supported and protected to continue to be able to trade unfettered, and with no additional costs”—


that is an important factor, because that goes directly to competitiveness—

“as full and valued members of the UK’s internal market.”

That was signed by the FSB, the CBI, the Dairy Council, the Freight Transport Association, Hospitality Ulster, the Institute of Directors, Manufacturing NI, the Mineral Products Association Northern Ireland, the Northern Ireland Chamber of Commerce and Industry, the Northern Ireland Food and Drink Association, the Northern Ireland Meat Exporters Association, the Northern Ireland Retail Consortium, Retail NI and the Ulster Farmers’ Union. To get all those bodies to sign anything with all the political parties is quite an achievement. The Minister must be very proud of what he has achieved in provoking that. But we are not simply politicking here; we are trying to speak on behalf of an entire community.

References have been made to the new Executive and how they should be engaged. We warmly welcome the fact that they are in place and, one hopes, will be able to speak on behalf of the community and get our message across. Many of us have been extremely worried over the past few years, because during these negotiations the people of Northern Ireland have effectively had no one to represent them. That has been a huge tragedy, and a lot of the mistakes that have been made have, in part, been linked to that. Despite repeated requests, there was little or no significant impact from Northern Ireland’s voice, because it was not at the table, where it was needed.

I hope that when the Minister replies he will understand that and understand the competitiveness issues involved. He has to acknowledge that, as we sit here today, there are not on the table the practical solutions that will allow unfettered access. Our anxiety is that those solutions may not be there and that in a year’s time “unfettered” will become “fettered”—that there will be differences, competitiveness issues and costs. I sincerely hope that the Minister is able to square the circle when he concludes this debate. I support the amendment in the name of the noble Baroness, Lady Ritchie.

[Lord Bruce of Bennachie (LD)]

My Lords, I, too, support the amendments. Having spoken in support of the principle last week, I shall be brief.

It is fair to say that this and the previous group of amendments are based fundamentally on a problem of trust with the Government. The Minister has given us detailed assurances as far as he is able, but the words of the Northern Ireland protocol and the assurances given by the Prime Minister do not seem to square with the facts. Understandably, therefore, it is difficult for people in business to feel comfortable that “unfettered access” means what it says. The noble Lord, Lord Empey, has indicated that there is a question over that. For example, being based in Northern Ireland, you may well have access to the Great Britain market but you may still have to fill in a customs declaration. That is a fetter and a tie, and it involves a cost. There is also the issue of at-risk goods, which may or may not cross other borders and will perhaps have to be separated out. That will involve an administrative cost and will be a problem. The Minister is fully aware that businesses in Northern Ireland—many of them small, as has been said—are facing Northern Ireland being half in and half out of both unions: half in and half out of the UK, and half in and half out of the EU. If anything is a recipe for confusion, that is it.

The point that the noble Baroness’s amendment makes is, given that in reality it looks as though there will be rules and regulations that change and that will have implications, what is required is a guarantee that businesses in Northern Ireland will be compensated or covered for that so that they will not be worse off. Many of us see a real intellectual challenge as to whether that is even practically achievable within the proposed framework. The Minister is not allowed to accept amendments to demonstrate good faith. He writes extremely detailed and genuinely constructive letters but they are not law, and that leaves us in this rather uncertain scenario.

To be absolutely blunt—I think that the Chancellor’s interview with the Financial Times last week made this clear—the hardliners are in charge. What is being practised is a hard Brexit and Northern Ireland is almost like a nut in a nutcracker. Many people feel that Northern Ireland is not the Government’s top priority in “getting Brexit done”: there is a worry that it is expendable.

The Minister needs to understand that behind these amendments is a genuine concern—even a fear—that all the assurances being given will be very difficult to square with the realities of the Brexit we will get, in terms of both how we withdraw and the future agreement. There needs to be a real and positive recognition that Northern Ireland cannot be left to be squeezed in between all that. If the United Kingdom means anything and if the commitments mean anything, Northern Ireland deserves those assurances, which is why these amendments have been tabled.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Ritchie, and those of my noble friends, to which I have added my name. The Minister knows that in discussions my colleagues and my party supported Brexit. We did so believing and agreeing that Northern Ireland would leave the EU on equal terms with the rest of the United Kingdom. However, what is proposed certainly does not do that.

Over the years, those running businesses in Northern Ireland have faced many challenges. Indeed, for 30 years they faced the bomb, and they did so with great courage. We ought to salute them in coming through those years of terror and tragedy. However, we had hoped that those challenges had been left behind and that the door would be open for prosperity. There was great hope for the future for the generations to come. However, we now find that businesses face further challenges.

I am reminded of the words in the document that was presented to the parties in Northern Ireland. In fact, I can still see the Secretary of State for Northern Ireland and the Foreign Minister from the Irish Republic standing at Stormont presenting the document and practically saying, “Take it or leave it”. That document contains the clear statement that,

“we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.”

However, what is proposed does nothing of the sort.

I appreciate that the Minister did his best in the letter that he sent to us but there is no cast-iron guarantee that fulfils what is promised in that document, New Decade, New Approach. I listened very carefully to the debate that exercised many noble Lords a short while ago and noticed that the Northern Ireland protocol and the problems it has caused were emphasised over and over again. However, the reality is that that is because of the sorry state that the Government got themselves into when they negotiated the protocol, and now Northern Ireland is left as a pawn in the game.

Last week, the EU’s chief Commissioner confirmed the checks and controls between Britain and Northern Ireland under the agreement that will govern the UK’s exit from the EU. As the noble Lord, Lord Hain, has already mentioned, the Chancellor of the Exchequer said in his statement that there will not be regulatory alignment with the EU after Brexit and that firms will simply have to adjust. That throwaway statement is not worthy, bearing in mind the question of quite how businesses in Northern Ireland are simply to adjust. The small and medium-sized enterprises are left confused and deeply worried about the future.

Can the Minister categorically guarantee that there will not be a raft of checks and controls placed on the movement of goods to and from Northern Ireland and Great Britain? Does he acknowledge that, if any of these were a reality, there would be a barrier to trade and Northern Ireland businesses would be at a competitive disadvantage in both the internal UK market and the EU? Additional bureaucracy will only add to the financial burden placed upon those small and medium-sized businesses that are least able to afford it. As the noble Lord, Lord Hain, said, they have been the backbone of the Northern Ireland economy.

European Union (Withdrawal Agreement) Bill

Lord Bruce of Bennachie Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

The intention behind this amendment is to provide a key reassurance to Scotland and Wales. As we know, Clause 38 as it stands is pretty meaningless. As we said in Committee, it was added basically as a sop to the European Reform Group. However, as the Explanatory Notes make clear, the clause makes no material difference to the scope of Parliament’s powers.

The problem with it is more what it does not say in that it fails to refer to the Sewel convention—the convention that the UK Parliament will not normally use its powers to legislate on devolved matters without the agreement of the National Assembly and the Scottish Parliament. Therefore, this stand-alone restatement of what I would call the bleeding obvious in regard to Parliament, without even a nod to the conventions, appears to backtrack on the devolution settlements.

The Welsh Government will therefore wish the Sewel convention to be restated. The noble and learned Lord the Minister said last week that that was not necessary because the settlements are already written into law. Perhaps they are but, for the same reason, there is also no need to restate parliamentary sovereignty. The problem is that doing one without the other gives the impression that the convention is being downplayed, and that is not helpful. I think I am right in saying that the Welsh Assembly, even at this moment, is debating legislative consent, and the rejection of this amendment will not be taken well by that gathering. For all sorts of reasons, it would be a poor precedent for this Bill to be the first to be passed without legislative consent from the Welsh Assembly.

The Government could decide to do what the noble Lord, Lord Newby, urged in Committee and take out Clause 38 altogether. That certainly would not detract from the Bill. They could still do that or they could accept this amendment. Either move would offer comfort to each of the devolved authorities that our departure from the EU was not being used to take back any powers or activities from their purview. Such reassurance, I know, would be welcome. The clock in Wales is ticking. I hope that the Minister can accept the amendment. I beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, I have added my name to the amendment and shall explain why. The noble Baroness, Lady Hayter, has made it clear that in a sense this clause is superfluous, but it is superfluous in a slightly sinister way. It asserts the sovereignty of Parliament and effectively says, “Therefore, this Parliament can always overrule the devolved legislatures.” We know that to be sovereign law but putting it in a Bill rubs salt into open wounds. Scotland and Northern Ireland have already refused consent and it is expected that Wales will vote today to do the same.

Over the last 20 years we have developed what is described as a quasi-federal constitution, but it is not federal; it is unitary, and Parliament, or Westminster, is sovereign. That is a fact. However, the whole point of the Sewel convention was to try to give comfort and reassurance to the devolved legislatures that they have a standing and a status that Westminster will take into account and acknowledge, and in all circumstances do its best to accommodate. It is a convention, not a law. That is obviously the argument as to why we should maybe move towards a federal constitution, which would effectively confer these conventions into law. I welcome the fact that the Labour Party is now engaged in serious consideration of federalism, which has been a long-standing policy aspiration of the Liberal Democrats. Quite genuinely, we should work together on a cross-party basis to develop the thinking behind this.

The Minister’s words may matter—not just the terms of the legislation. There should be a sense of concern that, as powers come back from Brussels to the UK, those powers that do not return directly to the devolved legislatures and Administrations will come to the central UK Government and effectively weaken the existing devolution settlement, unless there is a genuine spirit of co-operation where the devolved Administration’s views are properly weighed and taken into account. If the Government simply say, “We brought back control to a sovereign Parliament. Whether you like it or not, this Parliament can do what it likes and we intend to do so”, that is not a good way to take the UK forward.

I do not necessarily subscribe to the view that Brexit makes the break-up of the United Kingdom more or less likely. The pain and disruption of Brexit might well discourage people in Scotland and Ireland from wanting to add other disruptions to it; I do not think it is as clear and simple as that. It behoves the Government to show a genuine engagement with the devolved Administrations; not just to use sweet words but to look for practical solutions that will ensure that the devolved Administrations are taken into account.

If the Government turn around and say, “We hear how you voted but we are carrying on regardless”, that will not provide comfort and confidence that devolution is here for real and will develop. It requires the Government to show a lot more accommodation. I agree with the noble Baroness, Lady Hayter, that there are two ways to resolve this. The Government could simply repeal the clause and leave the Bill vacant on this, or they could accept the amendment. To do neither of those things would leave people in all the devolved areas very suspicious of the Government’s intentions.

[Baroness Bryan of Partick (Lab)]

My Lords, I think it is fair to say that, had we not been in the EU when devolution occurred, we would most certainly have moved towards a more federal arrangement in this country. The fact that our regulations were shared across the UK, even in devolved areas, covered the need for a federal arrangement where the different Assemblies and Parliaments could come together. Now that we will be out of the EU, there is a fair degree of urgency to address this. How are we going to devise regulations in the future? If we start that process by not including the Sewel convention, we start from a point where levels of disagreement are such that it will be hard to have that debate in a calm, careful way. We should accept this amendment, but also go on to explore the ways in which, where devolved matters intercept, we will work together in future across territorial areas. I hope that we can accept this amendment.