European Union (Withdrawal) Bill

Lord Patten of Barnes Excerpts

Wednesday 21st March 2018 Lords Chamber

Moved by

[Lord Patten of Barnes]

261: Before Clause 10, insert the following new Clause—
“Northern Ireland: the Belfast principles
(1) In exercising any of the powers under this Act to make any provision affecting Northern Ireland, a Minister of the Crown or any devolved authority must have regard to the requirement to preserve and abide by the principles and obligations contained within the Belfast Agreement and given effect by the Northern Ireland Act 1998 (“the Belfast principles”).(2) The Belfast principles include, but are not limited to—(a) partnership,(b) equality, and(c) mutual respect,as the basis of relationships within Northern Ireland, between the North and South of Ireland, and between the islands of Ireland and Great Britain.(3) In particular, in relation to this Act—(a) a Minister of the Crown must not give consent under paragraph 6 of Schedule 2 to this Act before any provision is made by a Northern Ireland department except where the Secretary State has considered the requirement to preserve and abide by the Belfast principles and considers the provision is necessary only as a direct consequence of the withdrawal of the United Kingdom from the EU, and(b) the powers under paragraph 16(b) of Schedule 7 to this Act to make supplementary, incidental, consequential, transitional, transitory or saving provision (including provision restating any retained EU law in a clearer or more accessible way) may not be exercised to do anything beyond the minimum changes strictly required only as a direct consequence of the withdrawal of the United Kingdom from the EU.(4) Section 11(3) of this Act does not permit the Northern Ireland Assembly to do anything which is not in accordance with the Belfast principles.”

[Lord Patten of Barnes (Con)]

My Lords, this amendment is in my name and that of a number of other noble Lords. For many years, there has been a panel game on Radio 4 in which people are asked to speak about a subject of which they have not been given notice for a minute without deviation or repetition. I have sometimes thought how that would cut short our debates in this House and down the Corridor. I have managed to avoid listening to this programme for the several decades that it has been broadcast, but others may know the one I am talking about.

That may be a relevant point, given that we had an excellent debate on most of the issues that we are covering this morning only a week ago. It was an excellent debate in which we talked about the Northern Ireland border, the relationship between the Northern Ireland border and the Republic border in terms of economics and other issues. We talked about that border and its overall relationship with the European Union and the United Kingdom because it would be the only land border between the EU and the UK. And we talked about that whole issue in relation to the Good Friday agreement, which everybody accepts is one of the coping stones of the peace that has, thank heavens, returned to Northern Ireland for the past few years. There were a couple of notable speeches in that debate. The former most reverend Primate Emeritus of All Ireland made an extremely moving speech. I do not want to ruin his career, but the noble Lord who wound up the debate made an important and interesting speech as well. It reflected what has been said elsewhere. The noble Lord said in replying to that debate: “Let me be frank”. That is not always something that one expects Ministers to say and it sometimes invites the reply, “caveat emptor”. I certainly speak confessionally on that subject. He said “Let me be frank” and then he was. He said that,

“the Belfast agreement remains the cornerstone of the United Kingdom Government’s policy as they approach Brexit. Further, the Belfast agreement is enshrined in international law, so it has a basis that is broader than simply membership of the EU. A number of noble Lords have made the point that it is our membership of the EU which was a factor in the agreement, and I do not think that that logic can be faulted”.—[Official Report, 14/3/18; col. 1703.]

He pointed out that in the light of that there was a great responsibility on our Government, on the Government in the Republic and on the EU to do all they can to sustain the Good Friday agreement and to find a solution to the question of the border.

In saying that, I am sure that the noble Lord was aware that he was repeating what has been said by Mr Blair, Sir John Major, the former Taoiseach Bertie Ahern, and Senator George Mitchell, all of whom played a very important role in the Good Friday agreement, which is one of the biggest achievements in post-war British politics without any question at all. There are Members of this House who played a role in securing that outcome.

Why is there a problem as we move down this path, like the chorus in “Fidelio”, into the sunlit realm of post-EU global Britain? There is a problem, for reasons which were explained very clearly. Some noble Lords used this quotation in the previous debate—quite simply, it is because of the challenge which the then Home Secretary referred to two days before the referendum when she said in reply to a question:

“Just think about it. If we are out of the European Union with tariffs on exporting goods into the EU there’d have be something to recognise that between Northern Ireland and the Republic of Ireland. And if you pulled out of the EU and came out of free movement, then how could you have a situation where there was an open border with a country that was in the EU and has access to free movement?”


I could not have put it better myself. Others have put it on both sides of the European referendum. It is the problem that the Government now have to address with some difficulty, because after the referendum result it was decided—I have read this in a book by the political editor of the Sunday Times, so it must be true—without any discussion or debate in Cabinet that whatever happened we would leave the single market and the customs union. So here we are, facing this very difficult problem.

Some people have said, “Well, you can deal with it quite easily because there’s no need for a border”. We have been told that there are technological solutions. They do not yet exist. They are somewhere down the road. Most of the people who suggest them have never been to Northern Ireland and have no idea what Fermanagh, South Armagh and that borderland are actually like. They point to other countries that they say manage without borders or any of the infrastructure of borders, or customs controls. Curiously, they sometimes mention America and its borders. Tell that to President Trump. It does not feel border-free if you are building walls or trying to get goods from Canada into America or from America into Canada. They talk about Sweden and Norway. We know what the Swedish Minister said about that the other day when she said that it was easier to get to the moon than to get goods into Norway.

Most experts have said very much the same thing, underlining the fact that borders, as we said during the earlier debate, are not principally about geography; they are partly about identity but they are also about the difference between legal regimes and regulatory regimes. I have to be careful about bringing a Frenchman into this debate, but somebody who perhaps knows more about trade negotiations than almost anybody—even more than Mr Fox—and who was Secretary-General of the WTO and before that a European Commissioner is Pascal Lamy. In giving evidence in this House and in the House down the street, he said that,

“at the moment the UK exits the customs union, there has to be a border”.

He went on to say that “frictionless, invisible borders” are a “fairy tale”, and that a virtual border does not exist anywhere in the world.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been a wide-ranging debate and I begin by thanking the noble Lord, Lord Patten of Barnes, for facilitating it. It will be almost impossible for me to respond without some form of repetition, I am afraid, and I am nearly certain that I cannot do it within one minute—I am very aware of that. Last week, too, we had a wide-ranging debate that touched on a number of issues and I hope that noble Lords will have an opportunity to examine some of the answers and discussions. I will try to be as focused as I can in the time available.

One of my first repetitions—one that I cannot make often enough—is that the Belfast agreement is the cornerstone of the UK Government’s policy and so it will remain. It is important to stress that the United Kingdom Government and the Ministers in the devolved Administration are already bound in statute and treaty under international law as an obligation of that Belfast agreement. That binds not just the United Kingdom Government but also the Irish Government, so this matter rests comfortably in that space.

Amendment 261, in the name of the noble Lord, Lord Patten of Barnes, would require both Ministers and Northern Ireland departments to have regard to the Belfast agreement and the wider principles when making any provision under this Bill that affects Northern Ireland. Those wider principles have been mentioned a number of times, not least by the noble Lord, Lord Alderdice.

Subsection (3) would require the Secretary of State to refuse consent to reserved provisions under devolved legislations unless the provision was necessary only as a direct consequence of the UK’s exit from the EU. This would place a much greater constraint on a provision that could be made for Northern Ireland compared to the rest of the UK, even in circumstances where there was no impact whatever on the Belfast agreement. In the same vein, the Secretary of State would be prevented from making any consequential provision affecting Northern Ireland beyond the minimum strictly required only as a direct consequence of exit. That would substantially constrain what could be done to update the statute book in Northern Ireland, putting the jurisdiction at a disadvantage compared to the rest of the UK. That is why we would not be able to move forward on the amendment as it has been tabled.

I am conscious as we approach the 20th anniversary—the noble Lord, Lord Murphy, stressed this—that we wish to see major progress, not least in the formation of an Executive. However, the noble Lord and other noble Lords raised wider issues, not least criminal proceedings and the European arrest warrant. In this context, I am conscious of the “beasts” of the noble Baroness, Lady O’Neill. Each of these elements will form part of the ongoing sector-specific elements which we will be discussing and which will come before your Lordships’ House for that thorough examination.

Amendment 316, tabled by the noble Lord, Lord Bassam, relates to an issue that has also been raised by your Lordships’ Constitution Committee. I say to the noble Lord that we will take on board his thoughts and give due consideration both to the committee’s report and to the issues that he has raised. We are conscious of that as a factor.

As to the Charter of Fundamental Rights, the noble Baroness, Lady Lister, has raised this wider issue on a number of occasions, as she reminded us, and I feel ill-equipped compared to those who responded to the point in the past. I will make two statements in direct response. The noble Baroness mentioned that next week there will be a delegation from Northern Ireland. I will be very happy to meet them, if that can be facilitated. I also give a commitment that I will take away her remarks from today and give them due consideration.

I could be repetitious at this point and say the lines that noble Lords have previously been given in response. I can give them again, but I think that noble Lords will appreciate that they will broadly stand where they did in the past. However, I am happy to engage directly with the noble Baroness and the noble Lord, Lord Cashman, on these matters going forward. I hope that that will give some comfort, if not contentment, on this matter.

I am always aware of what the noble and right reverend Lord, Lord Eames, brings to the debate. I think that he has captured the mood of the Committee as I do not doubt he has captured the mood of the entire island of Ireland in the past. His points are none the less correct. There is no doubt that the issues that we are facing now on Ireland will be the crux of the ongoing discussion. It is right that the noble Baroness, Lady Smith, should have raised these points again in her remarks. She is absolutely correct when she says that we have a responsibility to tell this House what we will be moving forward. We will fulfil that responsibility. It will not be in the withdrawal Bill per se. The purpose of the withdrawal Bill is to create a functional statute book for day one after Brexit. However, for each of the elements that has been raised, not least those that are sector-specific, we will come back to the House with clear statements, which all noble Lords will have the opportunity to address. I hope that we can make that point going forward as best we can.

I am aware that a number of other noble Lords have raised important issues, not least my noble friend Lord Cormack, the noble Lord, Lord Jay of Ewelme, and the noble Baroness, Lady O’Neill of Bengarve. This has been a wide-ranging debate. I hope that there will be some comfort in my words, but I appreciate that they may not be as comfortable as the Committee would like them to be. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

[Lord Patten of Barnes]

The Minister began his remarks last time by speaking from the heart. He spoke on that occasion without doing what I fear he did on this occasion, which was to deal as rapidly as possible with the “it says here” part of his brief. I commend the Brexit department for producing it, although I did not agree with the argument, which seemed to be more or less that if we accepted the amendment we would be treating Northern Ireland differently from the rest of the country. What does he think the Good Friday agreement is? The Good Friday agreement is about the fact that Northern Ireland unfortunately has been a casualty and a victim of our inability to share these islands peacefully together for centuries. I assure the Minister, whom I much admire, having seen him at the Dispatch Box being charming and on the last occasion reasonably convincing, though I think not on this occasion, that when we get to Report, Deo volente, if we are here, many of us will want to come back to this subject and, I hope, take it as far as a vote. I beg leave to withdraw the amendment.

Amendment 261 withdrawn.