European Union (Withdrawal Agreement) Bill

Lord Duncan of Springbank Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.

This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.

The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been an interesting discussion, which has focused on a broad range of issues affecting the wider devolution settlement.

Some things need to be set out very clearly at the outset. The first thing is that the purpose of the protocol, which was not mentioned a great deal in the discussion, is to ensure the delivery of clean access within the island of Ireland between Ireland and the UK. This is to ensure the integrity of the customs union of the United Kingdom but also that we have the powers available as we go forward in the calendar year ahead to make necessary amendments in real time to the various elements that will be required as we seek to deliver on the Northern Ireland protocol. The important thing to stress is that we are in a situation in which time is of the essence, but that can never be an excuse.

Secondly, a number of noble Lords have spoken of the repeal of the devolution settlements almost as a Domesday scenario. There was a reference to Henry VIII powers being used, in essence, to eliminate the devolution settlement with Wales or anywhere else. It is important to stress that this clause is in no way designed for, or seeks to achieve, that purpose. Where there are elements of primary legislation which are to be amended, this will be done through the affirmative procedure, which allows significant scrutiny to take place in both this House and the other place. It is important to recognise that we are not just talking about the letter of the law here, but the wider settlements which we have discussed more broadly with regard to Wales and Scotland. The very notion that we can, by some fiat, undo that which has been set in place through the devolution settlements is, frankly, borderline ludicrous. It is not going to happen.

[Lord Howarth of Newport]

Is the Minister therefore saying that the Delegated Powers and Regulatory Reform Committee is incorrect? Paragraph 9 of its report notes that Clause 41

“contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament … Such regulations are made pursuant to the negative procedure.”

[Lord Duncan of Springbank]

To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.

We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.

It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:

“Do you feel lucky, punk?”


and “Make my day.” I am not sure either one is particularly relevant.

In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.

On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.

[Baroness Hayter of Kentish Town]

I am afraid that that does not answer the points noble Lords have made. It is not so much that the powers are needed for Northern Ireland, but there should be restrictions on them. I am sorry, because the Minister is normally brilliant at the Dispatch Box and very well briefed. However, had he read Amendment 15 he would have seen what we were trying to write in by restricting those powers, such as not undermining the Government of Wales Act. He would have understood that we were not questioning that some of the powers will be needed for Northern Ireland—we will come to that in a different debate—but the way they have been set out in this clause. Unlike Clause 18, which I quoted, Clause 21 does not have the restrictions on those powers that exist in the other clauses in the Bill or, indeed, in the 2018 Act.

Our concern remains. It is good to have a northern voice. Most of us here are Welsh or from the West Country, where we feel this very strongly. The Minister is saying that these powers were not designed to undermine devolution and that the intention is not to use them that way, but that is not good enough. When something is put in an Act of Parliament, it is a power. No matter that it is not intended to be used that way, the power is there. As the noble Baroness, Lady Finlay, said, there is already another way. Although I cannot see that the Government of Wales Act would need to be altered for Northern Ireland, if it does there is a perfectly good way of doing it. Denying the restriction, whether it is new criminal offences or anything like that, which exist for all the other Henry VIII powers, is very hard to substantiate, simply because it is to do with Northern Ireland. Not accepting that the other devolution settlements should be in any way accessible to these powers is unsatisfactory. As other noble Lords have said, even the word “repeal” is like waving a red flag at the way these powers could be used.

Having heard from the noble Lord, Lord Tyler, my noble friend Lord Howarth, the noble Baroness, Lady Finlay, and the noble and learned Lord, Lord Thomas, I hope that the Minister might look again at the wording of these amendments and understand why we have real worries about them. Perhaps he would be willing to meet before Report. Otherwise, it will be necessary to try to circumvent these powers in a way that happens elsewhere, but not in relation to the Northern Ireland protocol. I leave the Minister with that thought and beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I should like to speak before the Minister responds. I want to make a few brief remarks, not least on what has already been said. In Northern Ireland we are continually lectured and told, “If you could only speak with one voice, how different things would be.” However, we speak as one voice tonight. We speak not only politically, but for the business community, and I include all those who have spoken on this matter.

I know that the Minister is a listening man, but I want him to go a step further and implement the proposed changes. The noble Lord, Lord Hain, the noble Baroness, Lady Smith, the noble Lords, Lord Bruce and Lord Empey, my noble friend Lord McCrea and others have said very clearly what Northern Ireland expects. We must be allowed to function as a country and as a trading partner with the rest of the United Kingdom.

There is no doubt—and those who do not agree with my politics at all have clearly outlined—that what we are being told by the Prime Minister is one thing, but actions always speak louder than words. We need the Prime Minister, the Government and the Minister, the noble Lord, Lord Duncan, to take on board very clearly that there are serious issues at stake here.

It is ironic that one part of the United Kingdom will have a border with the rest of the United Kingdom. How can that ever be right? Even common sense will tell us that that is not functional; it will just not work.

It has already been stated that Northern Ireland’s economy is built on a multiplicity of small businesses—those which employ and engage fewer than 10 people. That is what our economy is built on; that is the backbone of our economy. We do not disparage the large companies that bring massive employment to our shores, but it has to be said clearly, and I do not exaggerate when I say it this evening, that those small businesses are watching every move, because their future is at stake—not only their future, but that of many homes.

It is no secret that wages in Northern Ireland are lower than those in other regions of the United Kingdom. Many families struggle. Many are in the poverty trap. Many live on the margins, as I call it. Are they not deserving to be treated equally? Is there not a strong case for saying that we need to look at this again? As my colleague and noble friend Lord McCrea has said, there is an ocean of difference in the meaning of the word “may” as compared to the word “must”, which the noble Lord, Lord Hain, has asked to be put in. You have an option if you may; you do not have that option if you must.

I concur with those who have said that this is not in any way a wrecking attempt. We know where we are in the whole Brexit debate. We know where we were in relation to Brexit. This is not a last-gasp, desperate attempt to do something over the Government. This can be implemented very easily and respectfully. I associate those remarks with the amendment in my name and the names of my three colleagues. We have absolutely no difficulty in supporting the amendments that have been tabled, and I trust that there will be no difficulty in supporting our amendment. It is there for the right reasons; there is nothing sinister about it. We are absolutely sincere. I plead with this House and with the Government to take it sincerely, because there is so much at stake.

[Lord Duncan of Springbank]

My Lords, this has been an expectedly wide-ranging debate because, when it comes to Brexit, the Northern Ireland protocol is where the rubber meets the road. I take on board the comments made this evening in that light. I also note the cross-party support for the amendments before us and I acknowledge that that is a unique occurrence.

I will try to give some context to where I think we need to take the debate. First, there is the question of unfettered access. It is straightforward for me to say that, as part of my party’s election commitment, we spoke of “unfettered access” in our manifesto. Further, my right honourable friend the Prime Minister has given a personal commitment on the notion of unfettered access; he is already on record as doing that. Further again, it is important to recognise that the world has changed since this matter was discussed in the other place. Over the weekend something—I will not say “miraculous”, and I do not mean it unkindly—extraordinary happened. We have restored the Executive and the Assembly, so the debate has gone on since then. It is important to note that New Decade, New Approach sets out explicitly that legislation to secure unfettered access will be in force by 1 January next year. Each of these are indeed new elements regarding this matter. It is important to stress that, between now and 1 January, there needs to be a serious and detailed granular dialogue with all of the business community of Northern Ireland as this matter evolves. For the first time we will have the voice of Northern Ireland in its right place—in the Assembly and the Executive. This Government commit to full engagement with the relevant Ministers and the wider Assembly in these matters.

--- Later in debate ---

[Baroness Smith of Basildon]

I thank the Minister, who is obviously trying to give some reassurance in his comments. He has said that it is the terms of the amendments—their wording—that cause some difficulties. However, I think he is conceding, and understands, the points and concerns raised, and why there is so little trust and a need for that reassurance in Northern Ireland. I apologise if he is going to come to this in a moment, but does it follow from what he is saying that he is therefore prepared to bring forward his own amendments that would give the certainty and reassurance required but deal with his concerns about the wording of these amendments?

[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.

[Lord Empey]

I apologise for interrupting the Minister. The Joint Committee has the capacity to widen the scope of its activities and what matters may be included. That disturbs a number of us, because what we see today could change. I do not think that any of us particularly want to get involved in votes, if that is avoidable. In consulting his colleagues over the next few days, will the Minister see whether some expression could be included which would effectively reassure people? A lot of the angst that we all feel would then dissipate. The last thing we want is to have any confrontations between the Houses, but this is heavy-duty stuff. The ability of the Joint Committee to expand its areas of operation and what is included, and not included, is a very big step over which we would have no veto or control. That is driving a lot of the uncertainty which we all feel here tonight.

[Lord Duncan of Springbank]

As always, the noble Lord brings an interesting perspective to this. I appreciate the fear that the Joint Committee may extend beyond its rails and somehow move into different areas. Within that Joint Committee is the United Kingdom itself, and the purpose there is to hold to account the United Kingdom as it seeks to engage directly with the wider EU. I note underlying that, however, the more important point: the question of reassurance. I hope that the words I can use will give some reassurance today. Equally, I think we will come back to this matter next week when the House will demand of me further reassurance. It is important that I am able to put clearly before this House, and as it echoes beyond this House into Northern Ireland, these reassurances: it has not been overlooked; the newly established Executive will have a strong voice in what goes on, going forward; and the business community can expect to be significantly engaged with each element of the question of unfettered access, to make sure that this is in no way an attempt by the Government to hoodwink either the people or the businesses of Northern Ireland.

If I may conclude, the important point is that I believe we are in common agreement that unfettered access is required. We have the assurance of the Prime Minister and we ultimately have—

[Baroness Smith of Basildon]

Since the Minister said that he was concluding, can I ask him this? He said that he wants to give reassurance. The noble Lord, Lord Empey, raised the point that we would rather not have disagreement between the two Houses. We would rather get the issue resolved, especially since I understand that in the other place they will have either no time for debate or so little time that it will move to a vote forthwith. Whether this House passes an amendment or not, we do not really have faith that this will be properly considered in the other place. It would be good to fully understand what the Minister is saying. Can he commit tonight to write to us with the details and place a copy in the Library, so that we can fully consider these matters before we come back? I urge him to think that the House is seeking reassurance from him because this matter has to be resolved. The consequences for the people of Northern Ireland if it is not resolved adequately are really very serious. Can he write by close of play on Thursday, so that we can fully debate it next week?

[Lord Duncan of Springbank]

Yes, I am content to put in a letter the elements I have set out today, with the appropriate detail and clarity which I may have lacked in my explanation this evening, so that the Committee can see exactly what I seek to put on the record. I am occasionally guilty of being expansive—I know that my Chief Whip looks daggers at me occasionally—but I am happy to put that down in a letter in appropriate time, so that the Committee can consider it and make sure that there is no dubiety in what I seek to put forward. I am happy to give that commitment and I will ensure that it is there in good time.

Again, I bring myself back to the important point: I believe that we seek the same outcome, which is to secure Northern Ireland’s place within the family of nations that is the United Kingdom, and to ensure that there are no impediments to the trade within the Province of Northern Ireland as it seeks to trade within its important relationships with the rest of the UK. On that point, I am sorry that I am not able to give more positive support, but I will do all I can in the next few days to set out in writing the Government’s position.

[Lord Teverson]

For simple clarity, can the Minister confirm whether he agrees with Monsieur Barnier in his analysis?

[Lord Duncan of Springbank]

Having been a Member of the European Parliament, I know that one of the challenges is that Commission officials can sometimes be too expansive in the way that they express themselves, for purposes that are not always clear. I am afraid that I do not know exactly why Monsieur Barnier said what he did but he may well fit into that category. I am also conscious that I did not answer the question of the noble Lord, Lord Bruce. If he will forgive me, I will write to him, and on that point, I conclude my remarks.

[Lord Hain]

My Lords, I congratulate the Minister on a beautiful response to the question put by the noble Lord, Lord Teverson. I must say that the skill with which he did it was admirable. I am grateful to all noble Lords who have contributed to the debate. The noble Lord, Lord Empey, made a truly excellent speech, the key message of which was that this is not a partisan issue. This point was reinforced by the noble Lord, Lord McCrea—he has not often praised me, especially when I was the Secretary of State for Northern Ireland, even though his leader did from time to time—so when the Minister consults with the Secretary of State and No. 10, can he make that point? We are not trying to re-fight a battle that dates from before the election; we are trying to resolve a problem that uniquely affects Northern Ireland. The point was reinforced by the noble Baroness, Lady Altmann, and the noble Lords, Lord Teverson and Lord Bruce, who put it very succinctly when he said that all we are asking is to put into law what the Prime Minister has promised. That is what it is.

My noble friend Lady Smith urged the Government to compromise, like the parties in Northern Ireland have compromised. Perhaps we can urge No. 10 to compromise. Your Lordships’ House has been put in a difficult predicament in this situation; it is like a sword of Damocles hanging over us. Unlike with other Bills, where we can make a logical and reasonable case, as we have done on Northern Ireland in recent times—I acknowledge that the Minister has been good enough to respond creatively, with the Government behind him—and there is then a bit of give and take, this does not even seem to be in the arena. It is as if we might as well not have this debate because the Government are not going to consider it anyway. I therefore urge the Minister to transmit in crystal clear terms what has been said right across the House in this debate. It is actually a question of trust, as a number of noble Lords said. I have tried to go into the detail in a reasonably forensic way, but it does not seem that what has been said in public by the Prime Minister—I am not taking a party-political pop at him because that is not what we are about this evening—actually reconciles with the facts on the ground.

I come to the Minister’s admirable summing up. To be perfectly frank, what he is really saying is, “Trust us because we are going to talk to the Assembly. It is going to be in business and that is a good thing. The Members can have their say and it will all work out on the day.” Well, there are certain brick walls here, and hard places and collisions between the two, so I am not convinced by that. I am not convinced that a process of sweet dialogue between the Government and the Assembly will necessarily solve these problems. The purpose of the amendment is to solve them, so that there will not be any costs on businesses and no impediments to trade between Northern Ireland and its brothers and sisters in the rest of the UK. That is what it is about. Therefore, I think that there is bound to be a sense of distrust if the Government are not willing to accept the amendment. As my noble friend Lady Smith said, if the Minister comes back and says that the Government would like to rejig the amendment to achieve what we want to achieve by using the expert help of his officials in the Box, of course we will look at that, because we want the same objective. Otherwise, we will be put into the position of having to consider a Division—which we do not want to do.

Can I just ask specifically: will there be direct Northern Ireland representation on the Joint Committee, to actually deal with this issue? Will there be direct input for the Executive and, sitting behind it, the Assembly, reflecting businesses? Will that be possible? Will the Minister clarify that point?

[Lord Duncan of Springbank]

I do not know the answer right now, but when I come back I will know the answer and I will set that out next week.

[Lord Hain]

I am grateful. As always, the Minister is very helpful.

We have a dilemma here. At the moment, we are intending to retable the amendments and we will have to decide what we want to do, and what the feeling of the House is. We all saw that the feeling in the Committee tonight, including on the Conservative Benches, was pretty unanimous that these amendments and the principles behind them are ones that the House wants to see.

Unless the Minister wants to add anything before I sit down—no? He is being diplomatic and possibly prudent in not doing so. But on that basis I will withdraw Amendment 13 in the hope that we will get something practical that is actually in statute on Monday or Tuesday before we consider this matter again.

European Union (Withdrawal Agreement) Bill

Lord Duncan of Springbank Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, this is not the first time we have debated the options for future UK participation in EU agencies and I doubt it will be the last. However, it remains a vital issue, and one where the Government and the Opposition remain at odds.

We have always been clear that, while it would require ongoing payments to the EU, it is in the national interest for the UK to continue working within or alongside EU agencies. These are the bodies that were established with the UK’s blessing, and indeed often at its insistence, to share best practice and promote efficiency by avoiding unnecessary duplication. Participation often comes with access to shared databases or alert systems. These are particularly important for food safety, product recalls and so on.

Under Mrs May, the Government shifted from point-blank refusal to even debate the issue to half-hearted commitments to exploring their options. Later they edged towards continued participation in some agencies if the price and terms were right. All the while we edge towards our exit without any kind of clarity. Your Lordships’ House and its committees have previously explored the options and precedents at some length. I hope the Government will have undertaken their own assessments. The Minister will know that it is not only possible for the UK to continue as part of many agencies but that that would be actively welcomed by our friends and colleagues across the EU 27.

As with the last group of amendments, I know the Minister will fall back on the fact that these are matters for the next phase of the negotiations. I also know that the Government will resist this amendment, as they have done with every other amendment that we have debated in recent days. I strongly disagree with that approach but it is the Minister’s prerogative. However, the suggestion from my noble friend Lord Whitty is a sensible one. All he seeks is an assurance that Parliament will be provided with information on the Government’s plans for future participation in each EU agency and will have the chance to debate those decisions. I have no doubt that your Lordships’ House’s committees will continue to carry out inquiries in these specific subject areas, and those reports will continue to be useful and give us the chance to talk about specifics, but I would like a commitment from the Government that they will be proactive in their approach, providing a speedy response and ensuring that sufficient time is allocated for discussion.

In my career I have been a much-regulated person, and the value of effective regulation when it comes to safety, trading, smoothness and so on is overwhelming. Every now and then we get a sad reminder of that when it breaks down, and unfortunately we have had this recently in the aviation industry. To take on the sheer complexity of certificating aeroplanes, for instance—in this case the Boeing 737 Max—you need an enormous level of competence and real political clout. The FAA failed to supervise Boeing successfully despite being a body in a big country which had all the resources to do it. The European aviation safety organisation did have that size. We have to recognise that to discharge these responsibilities without being part of a larger agency will be an enormous challenge, requiring enormous resources.

I really hope that the Government will take the general thrust of my noble friend Lord Whitty’s amendment and recognise just how valuable it is to retain membership of the European agencies in one form or another. The chances of generating our own capability to have the same impact on safety in particular, but also reliability, co-operation and so on, are, in my view, close to negligible.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been a short but worthwhile debate. I thank the noble Lord, Lord Whitty, for tabling amendments which have allowed us to discuss the matter. Amendment 62 lists the large number of agencies of which we are full members; I will not read them out either, but I recognise their value and worth over the years.

It is important to stress certain points at the outset. Of course, during the implementation period, we will remain full members of and have full participation in these bodies. We have also made declarations about which bodies we have a particular ambition to remain active in after that implementation period, covering things such as aviation safety, the chemicals agency and the medicines agency. We can all see the value in those. However, I must stress again that these elements will be subject to an ongoing negotiation. They cannot be secured by unilateral demand. There will be a discussion to take that matter forward.

It is important to stress that in each of these areas and with each of these agencies, it is not the Government’s intent to make any of the adjustments in secret. It will be necessary for all those regulated or affected by those agencies to understand how the Government-EU negotiations will impact the industries, sectors and the individuals themselves. The obligation to provide a report is all but superseded by the Government’s necessary commitment to do this, to ensure the safe continuation of each of the elements for which those agencies are responsible.

The Prime Minister himself has said that he will keep Parliament fully abreast of these developments, and rightly so. Even more importantly, the committees of this House and the other place will be in full scrutinising mode to ensure that the way these evolutions unfold is fit for purpose, works for those affected and ultimately delivers against the Government’s objectives of allowing growth in these areas. A number of noble Lords have hinted that some of these areas are more challenging to deal with and that is why we need to find ways of working through, to make sure that we are not dimming our ambitions or collaborations in any way. I hope that through those negotiations we will be able to move these matters forward in constructive ways.

The noble Baroness, Lady Miller, asked about the research challenges. I accept that the Joint Research Centre and some of the institutions to which we belong will need to be considered in a new light. I also recognise that we are a participant not just because of our membership but because of respect for the science for which we are responsible and the work we are able to bring. That is a testament to our universities and our wider academic sectors. We should not lose sight of the fact that we are not just active but valued participants in a number of these areas. That relationship must continue because, in many respects, the research that is being considered is more important than the politics which underpins some of today’s debate.

I cannot accept the amendment, but I accept why the noble Lord, Lord Whitty, tabled it. I accept that he has done so to try to secure from the Government an understanding and an appreciation of how we will go forward. The important thing is that we will be transparent. The negotiations will consider our relationship with each of these agencies and, as that consideration evolves, we shall ensure that both Houses of Parliament are fully abreast of what this will mean. We will do so in a manner that allows the necessary scrutiny that noble Lords would expect from the committees we have here today. The settled will of developing these ideas will be done in collaboration with the EU. Those negotiations are important but, on a number of issues, I am afraid we cannot give the commitments that even I would like to give just now because they rely upon that negotiated approach. On that basis, I ask the noble Lord, Lord Whitty, to withdraw his amendment, in the knowledge that his ambition is, I believe, also shared by the Government.

[Lord Whitty]

My Lords, I am very grateful for that full reply from the Minister on the intent of Government in these areas. I would, however, ask him to comment on one or possibly two areas.

First, the three agencies that he picked out were the ones that the previous Prime Minister picked out, in one of her major speeches in this saga, as being particularly important for continuing participation. Perhaps I should solidly approve the consistency of policy within the Government over the change in regime, but if that is still the priority, it is a rather limited number of these agencies.

Secondly, the noble Lord said that things will continue as normal during the implementation transition period. My understanding—as of a few months ago, anyway—was that, while the rules would remain the same, our participation in any of the executive bodies of these agencies has been denied by the European Union. If there is a change in that situation, I would strongly support it, but my understanding is that only a few weeks ago the EU’s view was that we would no longer participate, even though we were bound by the rules. Could the Minister comment on that?

[Lord Duncan of Springbank]

Yes, of course. The noble Lord is correct. I did not mean to imply that there is no change whatever. I meant that what those agencies do, and our commitment to those agencies, continues unchanged during the implementation period, until such time as the negotiations reveal the structure or the future arrangement. I picked out the three particular agencies because there has been continuity on those between the two Administrations post the election or post change of regime, and those are clearly ones in which we would wish to see an active participation. We would prioritise these in developing a relationship with the EU, but not exclusively so—I would not wish it to be thought that, of the agencies that have been listed, only those three are for active consideration. Those are ones that, in light of our conversations and debates so far, probably stand at the top of the list. For each of the others, an accommodation and a relationship will be required. What it will be and how it will be determined will ultimately evolve through those negotiations. I hope this House and the other place will be kept fully informed of those.

[Lord Whitty]

My Lords, I thank the Minister very much for that clarification, and I beg leave to withdraw the Amendment.

European Union (Withdrawal Agreement) Bill

Lord Duncan of Springbank 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 Wigley (PC)]

My Lords, I have an apology to make to start with: I am so sorry that Wales sent Henry VII and Henry VIII through to Westminster to impose the sorts of powers that are now being used in the way they are. Henry VIII was also responsible for the Acts of Union, and I am sorry about that as well.

With regard to Wales, quite clearly these powers are being drawn up in a way that is, at best, cack-handed and, at worst, causing immense reaction in the National Assembly. It is no overstatement to say that Members across party divides in the National Assembly are seething about these powers being brought forward. It follows two years of discussion and debate about fears of a power grab, with powers being taken away from the National Assembly, and indeed possibly from the Scottish Parliament—no doubt Scottish Members of this Chamber can speak up for themselves on the situation there, although I must admit that I have heard very few Scottish voices in these debates. However, as far as Wales is concerned, there is real fear that, in areas such as agriculture and on the question of the single market and the purchasing power of the Assembly, powers may be taken back. That might be done on the pretext of their being necessary for the UK single market, or possibly for other reasons.

Given that there has been co-operation in Wales across party boundaries to make sure that the settlement we have is worked out in a sensible way and progressive additional powers have been given, and, by and large, that successive Governments in Wales have worked in collaboration with Governments in London, for this clause to be put forward in this way is, frankly, not acceptable. The Government of Wales Act could itself be amended, or even overturned. How on earth can these powers be necessary when there are other ways of achieving the objectives the Government may have in the context of international treaties, as the noble and learned Lord, Lord Thomas, mentioned a few moments ago?

I beg the Government to look again at this. They are stoking up unnecessary conflict between Cardiff and Westminster. There may well be areas where we will have conflict and differences of opinion, so, for goodness’ sake, do not do it gratuitously. I ask the Minister to look seriously at this again and, if he cannot accept these amendments, to bring forward amendments on Third Reading to deal with this situation.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.

As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.

At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.

The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.

Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.

I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.

The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.

The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.

The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.

On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.

The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.

I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.

There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.

I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.

The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.

I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.

[Lord Howarth of Newport]

Before the Minister sits down, will he explain why the very extensive and potentially arbitrary powers the Government propose to take under Clause 41 are not subject to the affirmative procedure?

[Lord Duncan of Springbank]

I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.

[Lord Thomas of Cwmgiedd]

Before the Minister sits down, could he possibly give some illustration of the kind of provisions for which he and his officials feel it would be necessary to use these very extensive powers that cannot be done under the various sections of, for example, the Government of Wales Act, to which we have referred? Can he give some assurance about what they are? Are they merely technical issues or are they further? It seems extraordinary that, when there are these detailed powers and it is asserted that they are insufficient, no illustration can be given as to why they are necessary.

[Lord Duncan of Springbank]

The noble and learned Lord raises a point that needs to be addressed head-on. The point is that we know that the existing powers whereby we can direct Welsh Ministers, or by using a Section 109 order, might well be inadequate for certain elements of the types of negotiations we anticipate. The problem we would have is that, if we place in the Bill all those aspects that we anticipate, we will run into some difficulty. They are primarily technical in nature, as might be expected in a negotiation of this complexity. The purpose of the powers is therefore to ensure the technical alignment of the various elements as we go forward to implement the Northern Ireland protocol. The ambition to do so will be done using the various instruments already available to us, including the Joint Ministerial Committee, which is primarily a method whereby we can examine the technicalities. The negotiations that will unfold will be technical and it might well be that out of that will emerge no elements in which we will need to invoke these powers—but, if we do need to do so, in areas where we anticipate that the current means to do so are not available, we would need to have these additional powers to move this matter forward.

[Lord Morris of Aberavon]

I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.

[Lord Duncan of Springbank]

I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.

[Baroness Finlay of Llandaff]

Before we finish this, I understand that the Minister cannot foresee all the issues that might arise, but what mechanism is there to ensure that, the moment something comes up that will clearly involve the specific competencies, responsibilities and regulations held by the Government of Wales, the Welsh Government will be involved from the outset—however much behind the scenes—and will have early warning that something might be coming down the road and that the Henry VIII powers might be used? The track record to date is not very reassuring.

[Lord Duncan of Springbank]

The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.

The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.

[Baroness Hayter of Kentish Town]

I thank the Minister, but he is struggling. I have three points to make.

First, this is political. The Minister knows jolly well that he should be making these amendments, and No. 10 is telling him that he cannot. He must have heard from across the House that there are serious concerns about two elements. One is regulation-making powers, and the other is this very important one concerning Wales in particular, as we have heard from the Welsh accents today. A Government who had not been told by No. 10 to make no changes would have made some changes, and I regret that the Minister finds himself in that position. His answers are, frankly, inadequate. He says that this is all going to happen in 2020, but if I am right—and I look to be reassured that I am—there is no sunset clause on these powers, so we are not just talking about this year. We are talking about powers going well into the future.

As the Minister has heard, there is deep concern in your Lordships’ House about the Henry VIII powers and the ability to amend an Act and bring matters such as criminal offences or setting up public bodies which otherwise could be done only by an Act of Parliament. We have heard concern from the noble Lords, Lord Tyler and Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, who used the word “unacceptable.” She said that there are no curbs on these powers. The noble and learned Lord, Lord Judge, took us back to Magna Carta—before my time—and the importance of things such as taxation not being done by ministerial fiat; and that is what we are being asked to give here. That is one side of it. As the noble Lord, Lord Beith, said, keeping that boundary between what Parliament can do and what a Minister can do is key.

The second aspect is Wales. Maybe it is because the Minister is Minister for Northern Ireland and Scotland but not for Wales—or, he is indicating, for only a little bit of Wales—that he does not understand. He has the father of Welsh devolution here, the noble and learned Lord, Lord Morris. It is worth hearing about how it was implemented and about the trust, or lack of trust, at the moment. Here we are, a day before the Government ask Wales to give its legislative consent to this Bill, being told that the Government want to do things without the consent of Wales because of some spurious things that Section 109 does not go far enough on— although we have not heard examples—or because the international direction is not covered, even though the protocol is an international obligation. The most regrettable thing is that the Minister is saying, “Take me out: do this by a vote,” because he will not bring back an amendment at Third Reading. That is the sign of a closed mind. I regret that.

I am not, sadly, going to test the opinion of the House, but I leave the Minister with the words of warning from, I think, the noble and learned Lord, Lord Judge: test us on this, and we will vote down those affirmatives. That would be much more serious in the long term for the way government works, and I really do not advise that. But for the moment, I beg leave, with great sadness, to withdraw the amendment.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, it has been a very good debate, not least because this is the first time in decades that we have heard in this Chamber from both nationalist and unionist representatives in the House of Lords. It is also many years since they have agreed—and that is good. I am delighted to say that we will support the amendment in the name of the noble Baroness, Lady Ritchie, because it sums up the position of unanimity in Northern Ireland. It sums up the point referred to by the noble Lord, Lord Empey, that every single business organisation, commercial organisation, trade union and politician in Northern Ireland believes that the substance of these amendments is correct.

It is a matter of mere hours since the Northern Ireland Assembly—happily back again this week—this afternoon passed a Motion declining legislative consent to this Bill, largely because of the issues that we are now debating. That is very unfortunate. On the points made by noble Lords regarding the decision of the Prime Minister and the Government not to accept any amendments at all, I suspect that this has caused the Northern Ireland Assembly to do what it has done. I am sure that that is not the Minister’s view, but he has to do what he has to do. The Government have a majority of 80 and the power to do what they want; but whether they have the right to do that is quite another thing, certainly with regard to Northern Ireland.

However, should we find that the amendment is not agreed to, Annexe A to the New Decade, New Approach agreement published last week says that the British Government commits 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.”

So, we hope that the Government will revisit this. We will look at the strength of feeling in Northern Ireland. We will be able to look again in the course of the next nine months or more; indeed, when the trade deal is being negotiated, we will look very carefully at the implications for Northern Ireland as they have been outlined today.

Before concluding, I will make one final point in relation to the previous debate on devolution. We now have three functioning devolved Administrations in the United Kingdom. I am not convinced that the Government have understood the significance of that change in the political landscape. Yes, of course we have to implement this Bill, because the people have agreed by referendum, and now by election, for it to happen. But, at the same time, the Government should do this in co-operation with the devolved Administrations and Parliaments.

There is no evidence that this is happening. Worse, if the Welsh Senedd, or Assembly, decides soon not to give legislative consent to this Bill, as is likely, then Edinburgh, Cardiff and Belfast will all have declined to support it. That is not good. It is not good for democracy or for our leaving of the European Union. So I look forward to some interesting comments from the Minister on how he can assuage the concerns that have been raised at this afternoon. This is one of the most important issues affecting Northern Ireland—its economic, commercial and business future. We all look forward to listening to him.

[Lord Duncan of Springbank]

My Lords, noble Lords may be looking forward to hearing my response rather more than I am looking forward to giving it, if that helps. I will try to address some of the specific points raised but will also make some of the more generic points that I must make; that is something I need to be clear on.

I will start by saying where I believe we are in agreement. We do not want to see a hard border on the island of Ireland; we are in clear agreement on that. We also recognise that Northern Ireland is, and must remain, an integral part of the UK internal market. It is important to stress that this means that there shall be no impediments to the trade between Northern Ireland and Great Britain. The noble Baroness, Lady Ritchie, asked about fishermen, and gave the example of Northern Irish fishermen fishing in British waters, landing on the coast of England and then returning to Northern Ireland. There should be no tariffs at all at any one of those process stages; it is important for me to stress that. If the noble Baroness permits, I would be very happy to sit down with representatives of the fishermen of Northern Ireland to discuss this further. I will reach out to Alan McCulla of the ANIFPO body to try to make that happen. I should say “I or my successor,” depending on the outcome of the reshuffle.

It is important to recognise also that there is a new kid on the block; that is true. There is now an Assembly in Northern Ireland and an Executive. It will be important in the calendar year ahead that the voices there are heard loud and clear in the ongoing negotiations that will take place under the arrangements with the joint committee. That will be absolutely essential.

I am also very aware that the business bodies that have written have come together across almost every aspect of the wider economic sectors of Northern Ireland to write as one. It is important that we do not lose sight of what that means. The noble Baroness, Lady Ritchie, asked when we would be engaging with these bodies. To a large degree, we have been doing so under a different guise, because there were different elements pre last weekend. But it is now time to say that we need to turbocharge that dialogue. There needs to be a serious dialogue with everybody affected by this reality going forward. It should be not a one-off chat but a dialogue that recognises the evolving situation in the ongoing negotiations as they impact on Northern Ireland.

The important thing to stress in this instance is that our commitment as a Government to Northern Ireland’s place in the union is absolutely unwavering. As I said the last time that I addressed these matters, both the manifesto of my party, which was endorsed by the people, and the personal remarks of my right honourable friend the Prime Minister, have given a very strong commitment that we shall ensure unfettered access in the calendar year ahead. It is important also—

[Lord Reid of Cardowan (Lab)]

With the leave of the House—as I was called away just after the speech by the noble Baroness, Lady Ritchie, and therefore missed part of the debate—I want to put a simple question to the Minister. Does he not yet realise that he is the unfortunate victim of the Prime Minister’s propensity to promise people that they can have their cake and eat it? In short, he promised that there would be unfettered access between the British mainland and Northern Ireland and that there would be unfettered access between Northern Ireland and the Republic of Ireland. It does not take a genius to work out that that promise means that there will be unfettered access between the United Kingdom and Europe—which is impossible to achieve if we leave Europe. Would it not be better now to admit that, however hard they try, this will not happen? Otherwise, the disappointment in Northern Ireland will grow into disillusion and the disillusion will grow to bitterness, and that is where our problems will start.

[Lord Duncan of Springbank]

I welcome the noble Lord’s introduction where he said he was making a simple point. In a sense, he has made a very specific point. The commitments that we have made to the internal market of the UK are strong, and the ongoing negotiations that will deliver the reality of both our free-trade arrangement with the EU and, specifically, the protocol for its delivery are yet to be had. What will be important is that the negotiation is conducted in good faith and, I hope, delivered as the expectations have been set out. If it is not so delivered then I think there will be disappointment and disillusionment, but I have faith and confidence that we will deliver them as we have said we will try to, and that is important to stress.

The noble Baroness who moved her amendment asked about the timetable of what will happen and how it will be done. It is important to stress that this will be done not by Orders in Council but by regulation. It is also important to stress that the—I almost used the word “backstop”; let us not use that word—end point in this scenario, which will be the end of this year, sets the point at which we must have on our statute book each of the functioning elements in order to deliver this particular commitment. Again, in this place and the other place there will be full engagement in those elements to deliver that particular legislative commitment and there will be full scrutiny, using all the normal procedures to achieve that.

I am aware, as I look at the reality, that I need to go into more detail about the specifics of the amendments. I need to stress the purpose here. That is difficult, in the light of the speeches made today and last week by the noble and right reverend Lord, Lord Eames, because it is very easy to get caught up in the technicalities. While my speech is not quite warm words and elegant waffle—although I admire the fact that the noble Lord, Lord Hain, put the word “elegant” into the waffle description; that was very much welcomed—there are some technical parts that we have to emphasise in this regard to ensure that the protocol and the issue that we are discussing actually work in practice. However, to return to the noble and right reverend Lord’s notion of the reality of reassurance, I am also aware that there is a reason why technocrats do not write poetry. When you are trying to talk about technical issues, it is very difficult to in any way soar to the heights of explaining a noble cause or a noble adventure. It is almost impossible for me to do that today, and I am quite sad that I cannot, but the notion of the reality of reassurance will be vital.

I will briefly interject a small aside: the noble Lord, Lord Bruce, mentioned “The Nutcracker”, one of my favourite ballets. The story has been described thus:

“The nutcracker sits under the holiday tree, a guardian of childhood stories. Feed him walnuts and he will crack open a tale.”


I am trying to work out whether I am the nutcracker or the nut. I have a suspicion that I am probably the nut in this analogy.

The challenge that we face is therefore to move forward on the specifics, so I am afraid I will have to divorce myself from any of the poetry available to me in order to look at that. First, Article 1 states that its provisions do not undermine the constitutional status of Northern Ireland within the UK. That goes to the point raised by the noble Lords, Lord McCrea and Lord Morrow. Article 4 is explicit that Northern Ireland remains within the customs territory. It is important to emphasise that Article 6 makes it clear that

“Nothing in the Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market.”


Importantly, New Decade, New Approach, which the noble Lord, Lord Murphy, referred to, sets in place the timescale, timetable and dates by which we must be able to legislate to guarantee the delivery—again, 1 January 2021. The protocol itself also contains the outstanding decisions that the UK/EU joint committee will need to take. I touched on this in the earlier discussion that I had: although we can set out in some regards what we intend to achieve, it is a negotiation and it will be required to move forward on that basis.

As I said previously, it will be vital that the Northern Ireland Executive are invited to be part of the UK delegation in any meetings of the UK/EU specialised or joint committees discussing Northern Ireland-specific matters that are also being attended by the Irish Government as part of the EU’s delegation. That is to ensure not just that the voice of the UK Government is heard there in a loud and booming tone but that the people who are affected by this are part of that open dialogue and discussion. It will be important for businesses in Northern Ireland to have trust not just in the UK Government in that process but in the Northern Ireland Executive.