Northern Ireland Protocol Bill

Lord Caine Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Northern Ireland Protocol Bill

Lord Caine Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister for giving way. Could he perhaps give an instance in which Norway has not immediately adopted a piece of European legislation since the EEA agreement came into effect?

[Lord Caine (Con)]

The noble Lord is a former diplomat. He is a far greater expert on these matters than I will ever be. However, my noble friend Lord Hannan has just whispered in my ear “the post office directive”. I will come back to the noble Lord with further details.

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord for giving way. I know that we will come on to the application of EU law in later groups, but since the Minister has helpfully referred to that, it would be good for him to be clear that, even under this Bill—the dual regulatory regime that the Government are proposing—there will be direct application of EU laws.

[Lord Caine (Con)]

As the noble Lord rightly pointed out, we will deal with this subject in the fourth group of amendments. I shall be responding for the Government, so if he can contain himself, we will deal with it at the appropriate point—if we get there this evening.

In summary, we do not think that it would be right to make implementation of measures in this Bill contingent on the restoration of the institutions, given the urgency of the situation in Northern Ireland to which the Government must respond.

I turn briefly to Amendments 68 and 69, also in the name of the noble Baroness. Taken together, these would make the commencement of all operational aspects of the Bill dependent on the approval of the Northern Ireland Assembly. At the risk of repeating myself, it is because of the operation of the protocol that the Assembly has not sat since February. We do not know how long this state of affairs will persist. The situation in Northern Ireland is urgent, and we cannot allow addressing the problems with the protocol to be delayed indefinitely.

The noble Lord, Lord Bew—I should really call him my noble friend—rightly referred to the fact that trade has been a reserved matter ever since the Government of Ireland Act 1920. The amendments would essentially prevent the Government making secondary legislation in a reserved area. That is another reason why we cannot accept them.

Given the urgency of the situation—the need to fix the protocol—it would not be right to make the implementation of the vital measures in this Bill contingent on the restoration of the Assembly and Executive. For those reasons, I ask the noble Baroness not to press her amendments.

[Baroness Suttie (LD)]

My Lords, I begin by echoing the Minister’s comments on May Blood. On behalf of these Benches, I pass on our condolences to her family. I heard about her when I first went to Belfast, and she was held up as a role model for so many in Northern Ireland.

At the outset, I said that this would be a probing amendment. It would be fair to say that it has provoked and probed quite extensively. We have covered a variety of topics, with some very interesting and thought-provoking speeches. In particular, I single out the very measured speech by the noble Baroness, Lady Ritchie, and that of my noble friend Lord Bruce, who perhaps displayed his irritations and frustrations with the situation a little bit more clearly than I did.

As ever, I found myself agreeing entirely with the noble Lord, Lord Kerr, and the noble Baroness, Lady Altmann. They are both absolutely right in their analysis that things are being done to Northern Ireland rather than for it. That is, in essence, the purpose of these amendments: they are probing amendments about the principle of consulting, and not just with one part of one community.

I totally agreed with the noble Lord, Lord Cormack. It was a wonderful piece of common sense. Would that we could all now finish what could perhaps be described as a waste of our collective time. There was an interesting series of contributions none the less.

I want to thank the noble Baroness, Lady Chapman, who rightly said that the amendments are about the principle of consultation—consulting the Members of the Northern Ireland Assembly and, in their absence, making sure that they are properly involved in the process. I fear that the Minister did not really expand on how that will happen in the weeks and months ahead.

It is, perhaps, one of the peculiarities of this Bill that no one department ever seems to want to take ownership of it. However, it was very welcome to have the Minister from the Northern Ireland Office today because, with all his experience, he was at least able to speak first hand about the consultation and the details of this legislation.

To repeat, the Northern Ireland protocol is a problem of this Government’s own making. Finding practical solutions needs to be their responsibility. However, it is important to listen to all voices in Northern Ireland and, as I said earlier, not just those of one part of one community. It is hard to see how creating further ill will through this legislation will achieve that aim. However, I will not press these amendments this afternoon but reserve the option of re-tabling them on Report, depending on what happens in the weeks ahead in Northern Ireland around the possible elections to the Northern Ireland Assembly. I beg leave to withdraw.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak first to Amendments 13 and 14, in the name of my noble friend Lady Chapman. These would replace the word “appropriate” with “necessary”. The arguments are the same as we heard in the previous group and express unease about the scope of ministerial powers. On the others, we can see the case for what the Government want to achieve—a differentiation of goods destined for Northern Ireland or for the single market. We believe that the best way to secure such a scheme is to negotiate with the Irish Government and the EU. The two sides’ proposals to this area differ on various points of detail, but there is undoubtedly room to compromise if there is the political will to achieve this.

As we said on the first day in Committee, we are sympathetic to the case for removing various clauses from the Bill. That is particularly the case for Clause 9, of which the DPRRC said:

“This is the frankest admission by the government the policy is so embryonic that it has not yet been consulted on. And yet Parliament is being presented with a major Bill on the subject.”


That quote was also put forward by the noble Lord, Lord Purvis. Despite our calls last week, we have not heard anything from the Foreign Secretary regarding the negotiations, beyond a brief confirmation of a phone call with Vice-President Šefčovič. I ask the Minister: when can we have a fuller, formal report on the state of the negotiations?

The only other point I want to make is to pick up the question raised by the noble Lord, Lord McCrea. My party acknowledges that there is a problem with the protocol Bill. Of course, it is the Government who are negotiating this, not Parliament. We, on our side, do not believe that the Bill is helping that process.

[Lord Caine (Con)]

My Lords, I am grateful for the opportunity to convince noble Lords of the merits of the dual regulatory regime. In doing so, it is important that we just take a step back for a second and consider the overriding purpose of these clauses and the regime itself. It is to remove barriers to trade between Great Britain and Northern Ireland for goods that will never leave the United Kingdom. It will enable us to address the so-called Irish Sea border, and support trade between Northern Ireland and Great Britain, as has been government policy since the Acts of Union in 1800, while respecting the integrity of the EU single market.

Northern Irish businesses will be able to meet UK rules when supplying the UK market should they wish, benefiting from future regulatory reform. That in turn will help to create the conditions that in our view can lead to the restoration of a fully functioning devolved Government in Northern Ireland, and therefore the implementation of all three strands of the Belfast agreement. The clauses will enable this to be achieved in the following ways.

Clause 7 makes it clear that businesses will have a choice of which regulatory route to follow when placing goods on the market in Northern Ireland. It introduces, as I have made clear, a dual regulatory regime for regulated classes of goods to which any provision of annexe 2 of the Northern Ireland protocol applies. This will create a new option to meet UK rules compared to the existing protocol arrangements, whereby goods are required to comply with the relevant EU rules. Where the relevant requirements allow, it will also be possible for the same product simultaneously to comply with both sets of requirements.

Currently, as noble Lords will be aware, traders have no choice under the protocol but to meet EU rules when supplying goods in or to Northern Ireland. This deters some companies, especially those trading exclusively within the United Kingdom, from serving Northern Ireland due to costs and administrative burdens required to meet this EU law: for example, retesting, re-marking and relabelling of goods, as well as the appointment of a representative to undertake administrative duties. All this comes at a cost, which I submit is completely unnecessary for goods that are to remain on the UK market.

The dual regulatory regime provides businesses across the UK with choice. If a Northern Ireland-based business trades north-south on the island of Ireland, they can continue, as now, to follow EU rules and sell their products into the EU and across the UK because of the Government’s commitment to unfettered access between Northern Ireland and Great Britain. If their business model is UK-focused, they can choose to follow UK rules and benefit from the opportunities afforded there.

By providing an alternative UK-rules route to market in Northern Ireland, the clause fundamentally protects the integrity of the United Kingdom internal market and addresses concerns over the so-called Irish Sea border for goods that will remain within the United Kingdom. That concern over the Irish Sea border is, as I said in response to an earlier group of amendments, the principal cause of there being no functioning Executive and Assembly in Northern Ireland.

On the comments made by the noble Baroness, Lady Ritchie of Downpatrick, I am very much aware of the concerns raised by Northern Ireland’s agri-food sector, and in particular the dairy sector, as I know from experience and have seen at first hand on a number of visits. Indeed, a short while ago I visited a farm between Newry and Armagh where the same family have been farming the land since the 1740s. The farmers in question are, if I may use the terminology, from a Protestant unionist background. It is a dairy farm, and everything they produce on it is processed in Ireland. Therefore I completely accept that, for businesses like that, the provisions of the protocol that enable EU single market access are not just desirable but absolutely essential. I assure her that we are very much committed to upholding that seamless EU single market access where it is essential for businesses. We are in favour of retaining those elements of the protocol that work while remedying those elements that do not.