Northern Ireland Protocol Bill

Lord Deben Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

I know that the Government are adamant that the 1998 agreement should be honoured in all its parts, and I fully comply with that. Now they have the opportunity to demonstrate that this commitment is sincerely meant. I hope tonight in your Lordships’ House and in subsequent correspondence to me, which I hope the Minister will place in the Library, that undertakings can be given that Article 2 is being protected at all costs.

[Lord Deben (Con)]

My Lords, the noble Baroness, Lady Ritchie, has done the Committee a great favour by detailing this particular aspect of the Bill. She has shown that the powers which the Government are seeking to take cover so much that none of us has any idea whatever as to what it may mean. No doubt, the Minister will be able to write a letter which details the answers to each of her excellent questions, but behind those questions is the fundamental falsehood of this Bill. The Bill gives to Ministers powers the strength, width and depth of which none of us have any idea, and the Government have even less idea, clearly, because if they did, they would have restricted those powers and would not have asked this House to accept a proposition which is manifestly undemocratic and which could not be accepted by any democratic House in any country in western Europe.

By the noble Baroness’s detailed forensic explanation of her particular interest, she has revealed the basic falsehood in the Bill and the reason that many of us are not going to allow it to pass, because it is contrary to everything that we have ever done in our political lives. I have been in politics in one House or another for more than 40 years, and no one has ever suggested a Bill of this kind ever before. Ministers had better understand just how serious this is.

I want to say one thing about Ministers too. Having been a Minister for 16 years, which is longer than most people are in post, I learned how important it was to have parliamentary restrictions—how important it was that civil servants could say to you, “I’m afraid, Minister, you can’t do that because that requires Parliament’s acceptance.” It was a vital part of the democratic process. We are being asked to remove that from Ministers, and I say to my noble friends that it is very bad for them, as Ministers, because it is that restriction and control which ensure that they do not move beyond where they ought to go merely because it is convenient.

The last thing that I will say about the excellent offering of the noble Baroness, Lady Ritchie, is this. However detailed the answer is, it will not overcome the fact that any promise made in this House can be taken apart if we give the Government these powers. It is not for Ministers to promise us things, because, if the Act gives them powers, however fine they may be—and what a fine list of Ministers we have—their successors will be able to use these provisions in a way which undermines any promise made to the noble Baroness, Lady Ritchie. That is why I wanted to come in particularly to congratulate her, because she has revealed the fundamental falseness of this whole proposition and the reason why this Bill, of all Bills, should not be passed by this House.

[Lord Bew (CB)]

My Lords, I rise to comment on the nature of the Bill, which has now taken on gargantuan proportions. It is a raging beast running through our constitutional rights and liberties.

However, to be clear cut, it is a good deal more modest. It says that there will be no hard border. It guarantees that it will protect the European single market. Just before the dinner break, the noble Lord, Lord Purvis, pointed out that, even if the Bill were implemented, it would not restore Northern Ireland completely to the UK single market in some pure form. He was quite right but it rather misses the point that this Bill is significantly more modest.

As for human rights, a very serious topic—the record of the noble Baroness, Lady Ritchie, in this respect is unequalled—the fact of the matter is that the Bill’s focus is the trade aspects of Articles 5 to 10. It is an attempt to remodel them so that it could reasonably be argued that the commitment in the protocol that the UK single market will be protected is lived up to rather better than it currently is. This seems entirely reasonable to me. I understand that there is a new doctrine in the House: if we read a document, we are all struck dumb by what was in the protocol and cannot even think. All further thought and debate about it is now over, as some mental trauma afflicts us all and we are so lost in admiration for it, but it is a problem. One of the many problems is this: there is a commitment to protecting the UK single market but we have many examples of how it is not protected.

However, the Bill is more limited than many would guess from listening to our discourse today. The crucial point with respect to this amendment is that Article 2 is not the target. That article and its points on human rights remain untouched by this Bill. It is Articles 5 to 10, which deal with the way trade is to be conducted, that are the target of the Bill. The Bill is therefore much more limited, and possibly less of a threat to our constitutional traditions, than has been said.

Above all else, there is a very simple thing that nobody seems to accept is critical: rather than saying, “We’re terribly sorry about the democratic deficit and so on,” how do you respond to the communities in Northern Ireland, who have a right under Article 1 of the international Good Friday agreement to have their aspirations protected by the sovereign Government and are saying, “We have a major problem here: the major issue of our alienation”? That seems to have disappeared entirely. For all its problems, at least the Bill is an effort to do this.

I am not convinced that the constitutionality of the United Kingdom and its great provisions are incredibly protected or defended by saying, “We just could not care less about that question.” This is about a more complicated balance. Is it not obvious that there is a balance to be found here? I desperately hope that it is reached in the negotiations with the EU. Is it not obvious that these strong, dramatic statements on both sides are not helpful in the struggle to reach the balance that must be found?

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[Lord Deben (Con)]

I am sorry to interrupt my noble friend, but when he replies to the points made by the noble Baroness, Lady Ritchie, will he answer the question not just whether the Government will do these things but whether they would have power to do these things? That is the question that most concerns me and many on this side of the Committee.

[Lord Caine (Con)]

I am grateful to my noble friend, and I will ensure that the answers to the noble Baroness are as full and detailed as possible.

In conclusion, given the lateness of the hour and the need to make progress, I genuinely believe that the aims of the Government, the noble Baroness and other noble Lords who have spoken in the debate this evening are broadly aligned. There might be differences of approach, but we do not believe that the amendments are required. I will write to the noble Baroness in detail and, in that spirit, urge her to withdraw her amendment.

Northern Ireland Protocol Bill

Lord Deben Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

Finally, I appeal to Ministers to look again at the drafting of these amendments. If there are some technical issues, I am happy to discuss them. However, I do not see why they cannot accept the principle behind them, which is to keep the single electricity market functioning smoothly.

[Lord Deben (Con)]

My Lords, in declaring an interest as chairman of the Climate Change Committee, I wish to follow on from what has just been said. As the Democratic Unionist Party knows, we have reached out to Northern Ireland particularly because of the difficulties the economics of that part of the United Kingdom have in meeting the climate change requirements. Indeed, I found myself in what my noble friends might well feel are the unusual circumstances of defending the Northern Irish Government against an assault by Sinn Féin and the Greens, demanding answers in Northern Ireland that were, in our view, not possible. The Climate Change Committee is clear that we do not ask of people things they cannot do. Therefore, Northern Ireland has a much more limited demand on it: to reach something like 85% of the 100% we want for net zero in 2050. That means that the rest of the United Kingdom must do better to make this possible.

I beg my noble friends the Ministers to recognise that, although they know that I am deeply opposed to this Bill in every aspect, I am asking for their help on this because the Bill presents a peculiar and particular difficulty: the single electricity market in Ireland is crucial to trying to meet the requirements that we place before it. First of all, it is crucial to keep the lights on Northern Ireland—I ask noble Lords to forget climate change for a moment because this is absolutely vital, and this is why it is set up in this way. I know this because I had to understand it to do the work that we did to help the DUP present its case to the Northern Ireland Assembly for not doing what most of us would love the Assembly to do: to reach the net-zero target that we have as a United Kingdom by 2050.

I beg the Minister to take this very seriously indeed, and to think of it differently from the way he wishes to think about the rest of the Bill. There will be issues if we interfere with the single electricity market; I cannot even see how we keep the lights on now. We must make enormous changes to meet the net-zero target, which the Prime Minister reaffirmed today as essential for our economic future as a United Kingdom. So if we are talking about the protection of the United Kingdom —the union—this is crucial to get right. This is not just about keeping the lights on; it is about ensuring that we can go on keeping the lights on without costing the earth. That is going to be very difficult for Northern Ireland to do—I recognise that. We have had extremely good conversations about how we might do it, but we will not be able to do it if we throw this bit of co-operation into debate or dispute, because Ireland as a whole—as an island—must meet this target together.

Indeed, one of the arguments properly put by the DUP when we were discussing all this was that the Republic of Ireland has not explained how it is going to meet its targets—we accepted that. We said that this does not excuse us from being detailed about meeting our targets. Instead, it means that we must recognise that those targets are not going to be met on a north of Ireland basis; they will have to be met by Northern Ireland within the context of the whole of Ireland meeting them.

The detailed examination of this, as put forward by the noble Lord, Lord Hain, is crucial in debating the Bill. In a sense, I wish that I liked the Bill, because that would enable my noble friend the Minister to see that I am being specific about this issue, wholly separately from the fact that I think the Bill gives the Government powers they should never have. The noble and learned Lord, Lord Judge, again pointed out that, every time we discuss any of these things, the big problem is that we are uncertain as to how these powers would be used. The problem here is not that, but rather, without excluding the single electricity market, we explicitly say that neither the European Court of Justice nor its previous decisions can be used in these circumstances. There is no way that the single electricity market can be run unless we maintain and protect the mechanisms which have in fact proven perfectly reasonable ever since they were put in place. Consequently, unless we maintain those mechanisms, there is no way we can keep the lights on because there is no way we can make that mechanism work.

Similarly, to those of us who are passionate about the serious issue we have so short a time to fight—climate change, the biggest physical threat to our society—I say that we are now throwing into doubt, maybe for years, the mechanisms without which we cannot do that job in Northern Ireland or Ireland as a whole. I plead with my noble friend the Minister to forget all the other arguments and recognise that there is something here that the Government must change in passing this Bill, whatever else happens. The Government know perfectly well that I hope the Bill will not pass and that I will do anything in my power to stop it passing, because it is a very bad Bill. However, this is so disruptive that it must be looked at, even by those who believe in the Bill.

If the Government want the co-operation they are hoping to get through this Bill, I hope the Democratic Unionist Party will explain to them why they must protect the electricity supplies. There is no way of doing that—or of ensuring that we fight climate change in Ireland—unless we accept that the electricity system be excluded from the operations of this Bill.

[The Earl of Kinnoull (CB)]

My Lords, I continue to be worried by the interrelationship between the trade and co-operation agreement and the withdrawal agreement. I mentioned this before in Committee on Monday, but I did not develop the point at all. The trade and co-operation agreement is 1,246 pages long. If you get to Part 7, “Final Provisions”, on page 402, you find a provision called “Relationship with other agreements”. I will just read it out because I think it is critical; we have been talking about Rumsfeld problems, but I think this is a kryptonite problem. It says:

“This Agreement and any supplementing agreement apply without prejudice to any earlier bilateral agreement between the United Kingdom of the one part and the Union and the European Atomic Energy Community of the other part. The Parties reaffirm their obligations to implement any such Agreement.”


This provision has been the topic of quite a debate around the place in articles, conferences and things, but it is an interlinking provision between the critical trade and co-operation agreement and the withdrawal agreement. As an interlinking provision, it means that, if something happens to the withdrawal agreement, that in turn—so goes the argument—could come back and torpedo part of, in some way, the trade and co-operation agreement, which, as I have said, is such a critical piece of our trade with our largest trading partner.

I feel that it is very important to consider that. First, I would like to ask the Minister—I am not sure who is answering this section; I now know it is the noble Lord, Lord Ahmad—whether he accepts that this an extremely important thing to consider. If by doing something to the Northern Ireland protocol and the withdrawal agreement you are causing damage to the trade and co-operation agreement, that could be very serious. Certainly, as you sought to make a change to the protocol, you would need to come back to a parliamentary process. You would need to stop and think very carefully about what would happen. That is why, when I look at Clause 13(4), naturally I agree with everything that the noble and learned Lord the Convenor said earlier about this, but I have an additional worry that any old Minister of the Crown could rush into making some regulations and not remember page 402 of the trade and co-operation agreement.

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[Lord Kerr of Kinlochard (CB)]

I have no expertise to match that of the noble Baroness. But I do think we need to remember that, in the last Northern Ireland election, the voting for the DUP was about one in five of those who voted—and, since the turnout was about 60%, it was a pretty low proportion of the electorate. It is worrying, or at least curious, that the DUP, which constitutes, on its voting last time around, 0.4% of the UK electorate, should be able, it seems, to wag the dog. It is a very small tail that is wagging the dog—and, if we all end up in a trade war with the European Union, it will be the tail that gets the most pain.

[Lord Deben (Con)]

Will my noble friend accept this, just to get the two noble Lords together—if I may put it like that? The fact is that nobody in Northern Ireland is going to accept measures that turn the lights off. Most people in Northern Ireland actually want to do something about climate change; the polls are absolutely clear about that. This Bill will mean that we will not be able to fight climate change properly, and the lights are certainly in danger—and, if the lights went off, I do not think that people would thank the DUP for that.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I rise to support Amendments 21B, 21C and 23C in the name of my noble friend Lord Hain. It is a pleasure to follow him as well as the noble Lord, Lord Deben, the noble Earl, Lord Kinnoull, and the noble Lord, Lord Kerr.

I am in absolutely no doubt, and all the research indicates, that the protocol is essential to allowing the lights to stay on in Northern Ireland and on the island of Ireland—because we have been in a single electricity market since 2007. The evidence is there to suggest the support of young people for ending political and economic uncertainty, plus their support for action on climate change. I declare an interest as a member of your Lordships’ protocol committee; we took evidence in Northern Ireland and from community groups, and the most important issue to them was not the protocol: it was addressing the cost of living crisis and the cost of doing business crisis.

The noble Baroness, Lady Hoey, referred to the fact that a significant proportion of people are opposed to the protocol. I acknowledge that there is unionist opposition to the protocol, but I also acknowledge that a large majority of Members of the Northern Ireland Assembly who wrote to the then Prime Minister, Boris Johnson, indicated their support for the protocol—and, in so doing, indicated their support for an end to that political and economic uncertainty. One way in which we can have economic certainty in Northern Ireland is through the continuation of the single electricity market, which deals with issues to do with decarbonisation and climate change. It is essential that the lights keep functioning, but it is fundamental to our businesses on the island of Ireland.

It is worth noting that the protocol provisions addressing the single electricity market on the island seek to ensure the continued operation of that wholesale electricity market from the end of the transition period. That is to be achieved by Northern Ireland continuing to align with a number of European Union directives on wholesale electricity. A report from the House of Commons some years ago indicated that Article 9 of the protocol, alongside Annexe 4, secures the continuation of Northern Ireland’s participation in the single electricity market on the island of Ireland. In that 2017 parliamentary report on Brexit and energy security, the parliamentary committee expressed its support for the preservation of the single electricity market, noting that it benefited Northern Ireland in energy security, decarbonisation and energy prices.

For those reasons, I make a special plea, as a resident in Northern Ireland, to support the amendments proposed by my noble friend Lord Hain. I urge the Government to accept them, because it is vitally important that there is a means to prevent unintentional and indirect negative consequences of excluding the jurisdiction of ECG on the functioning of the single electricity market. In that respect, I look forward to the Minister’s response.

The noble Baroness, Lady Hoey, referred to a large section of the population not supporting the protocol. We took evidence this morning from Peter Sheridan, the chief executive of Co-operation Ireland—and I freely admit that I am a member of that board. It was excellent evidence that clearly highlighted the fact that yesterday he was talking to loyalists and, in their evidence, they did not highlight any particular issues about any return to violence. He had a very constructive meeting with them, from what he told us. So things are not as acrimonious or about to tip into violence as some would suggest.

I urge support for the amendments and, in so doing, support to underpin the single electricity market, which has been an excellent product since 2007.