Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, over the Recess, the Minister and I both travelled to regions of the world where peace building continues to need to be nurtured and where trust is a vital commodity. The offensive nature of this Bill is that in just one measure it breaches international law, undermines our reliability for other international trade agreements, divides communities rather than brings them together and abuses proper parliamentary legislative processes to an egregious degree. The fact that it is a Foreign Office Bill—a department which is meant to promote the currency of the British word in an unreliable world—is doing immeasurable damage. I believe that the House knows it and that the Minister, who is very highly respected here, must know it too. My colleagues will expand on these areas in their contributions.

When the Government presented their protocol, they did so with somewhat of a Janus face. “Best of both worlds” and “oven-ready deal” was how it was how it was spun, but the unspun accompanying impact assessment was clear that it was neither, and far more complex.

Chapter 6 of the impact assessment at the time, on risks, states in paragraph 295:

“An increase in uncertainty associated with the UK’s regulatory or customs position with the EU could affect the business environment and consumer confidence. The costs of new checks and administration associated with the Ireland/Northern Ireland Protocol may affect the profitability of businesses trading to and from NI … given uncertainty around price changes, or the UK’s and NI’s relationship with the EU, consumers may decide to delay spending, reducing consumer demand for goods and services”.


Paragraph 302 states:

“The proposals will have an effect on all UK businesses that move goods between Great Britain and Northern Ireland, irrespective of the business’s size … a ‘one size fits all’ approach for business trade requirements is likely to have a disproportionate effect on SMBs in particular”.


Paragraph 319 states:

“This could result in higher prices for Northern Ireland consumers purchasing goods which reached Northern Ireland from both Great Britain and Ireland.”


Remember, this is what the Government said would happen if it was working—not if it was not working, which is what the Minister seems to be suggesting today. Perhaps the Government thought that we would not read the impact assessment at the time, let alone remember it. Boris Johnson said that there would be no problems. Liz Truss said that the problems were “unintended”. The noble Lord, Lord Frost, said that they were someone else’s fault. Speak no evil, hear no evil, but see evil.

When Liz Truss said in the spring that there were “unintended consequences”, the poor officials who outlined the intended consequences must have rolled their eyes. However, with the joint monitoring and systems that the Minister has outlined today, they were the very ones that were rejected by the Government at the time of the protocol. I am therefore not surprised that some want the protocol ended.

Instead, the Government say that they want to mend it, not end it. So if they mend, not end, what will be left of it? Northern Ireland will still have to operate under a foreign power’s laws and have no say over them. It will still collect its taxes, still operate under its state aid rules and still have to comply with the hundreds of regulations listed in the annexe to the Brexit agreement that I spoke of in 2019.

On countless occasions, the Liberal Democrats, along with our Alliance partners in Northern Ireland, warned constructively but repeatedly that the Government knew they were in breach of the previous commitment that the Minister, the noble Lord, Lord Callanan, gave to this House in January 2019 when he said:

“We will give an unequivocal commitment that that there will be no divergence in rules between … Great Britain and Northern Ireland”.—[Official Report, 9/1/19; col. 2222.]


We were ridiculed and condemned, especially in the House of Commons by people such as Steve Baker MP. However, today, on behalf of my colleagues, I accept Steve Baker’s apology. By the way, some might be tempted to suggest that it is the fact that we have this Bill that forced Brussels’ hand to return to talks; it is perhaps the welcome hand of apology from a Northern Ireland Minister.

The Minister’s justification for the Bill today seems to be based on the coming to pass of the very impacts that the Government themselves said were going to happen, but that case for the Government is disingenuous as the Bill does not even address all the areas in the Government’s previous Command Paper. There, they listed what they said were the problems with the protocol —not least that it would be an ongoing “democratic deficit”, which, I remind the House, was a fully intended consequence. So the Government cannot say that this is the solution when it omits whole swathes of areas that they previously said were the problem.

At this point, it is worth saying that the impact of the protocol has been mixed, with some benefits for people in Northern Ireland, which has benefited from the single market. Those are not my words; they are the words of the Northern Ireland Economy Ministry under a DUP Minister. I will quote from Invest NI:

“This dual market access position means that Northern Ireland can become a gateway for the sale of goods to two of the world’s largest markets … This is a unique proposition for manufacturers based in Northern Ireland as well as those seeking a pivotal location from which to service GB and EU markets … These additional benefits further enhance Northern Ireland’s already strong proposition as a prime location to establish, or grow, a business”.


I think the whole House wishes the Northern Ireland economy well and wishes growth for it, but the Government’s legal position is that all of what the DUP Minister’s department is saying is a grave and imminent peril to this country. Both cannot be right.

Describing “grave and imminent peril” is in the Government’s legal position: it seems to be their case. They cite the UN International Law Commission’s Responsibility of States for Internationally Wrongful Acts from 2001. However, Article 25 of that states:

“Necessity may not be invoked by a State … unless the act … is the only way for the State to safeguard an essential interest against a grave and imminent peril”.


It goes on to say that

“necessity may not be invoked by a State as a ground for precluding wrongfulness if … the State has contributed to the situation of necessity.”

The Government state that the UK has not contributed to this situation of necessity relied upon. But, of course, that is almost a risible explanation, given that the Minister at the time, in 2019, signed an impact assessment saying that they were party to it. Given that the UK has made policy decisions separate from the agreement that would have had a material impact on UK trade with Northern Ireland, such as on labelling requirements, the Government cannot credibly argue the UK has been a wholly unwitting and absent bystander to this process.

I agree with the Law Society of Scotland, which said that the Bill goes beyond what is necessary to resolve any trade problems and instead seeks to rewrite provisions in the withdrawal agreement and the NI protocol, such as those in Clauses 13, 14 and 20. When the Advocate-General winds up this debate, I would be grateful if he could clarify the Minister’s assertion, in response to the intervention, that Article 16 would bring about the cessation of the whole of the protocol, rather than be a mechanism that could resolve certain elements of it. I have to say that the contradiction in the noble and learned Lord, Lord Stewart, over these two days arguing in the Supreme Court that the Scottish Government are seeking to act unlawfully but this evening defending the Government for breaking international law is jarring.

Why should this deplorable misuse of “necessity” and redefining “grave and imminent peril” worry us so much? Since I have been speaking on trade from these Benches, I am now on my seventh Trade Minister in the Lords. Every one has said “Our word is our bond” in implementing agreements. For all the trade agreements we have signed, the other side will know that they can be changed unilaterally. How can we be trusted if we choose not to use the dispute mechanisms written into trade agreements but just bring forward domestic legislation to disapply treaty obligations? Pacta sunt servanda.

The Bill presents no baseline information on disruption, subsequent to the original impact assessment. It presents no objective assessment of overall net impact on the economy of Northern Ireland and no regulatory impact assessment contrary. This is all contrary to clear Cabinet Office guidance on legislation.

Finally, of course, the Bill reflects the Government’s view of Parliament. The Law Society of Scotland has said that

“it is inappropriate to implement international agreements by regulation. That approach departs from the precedents set by the EU (Withdrawal Agreement) Act 2020 and the EU (Future Relationship) Act 2020.”

I would add that it is contrary to every commitment for every trade agreement since Brexit.

I conclude by quoting these remarks:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations … the legislative mechanism by which the Government propose to give to effect to the Bill’s purpose is wholly contrary to the principles of parliamentary democracy (namely, parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament)”.


That was all from the Delegated Powers and Regulatory Reform Committee of this House.

On the basis of the breach of international law, the damage to our standing and word around the world, the adding to divisions—rather than healing them—and the abuse of Parliament, the Government should think again. At the very least, we should reflect very carefully on the necessity of proceeding, given ongoing talks that we on these Benches wish well and which need to continue and conclude.

--- Later in debate ---

[Lord Hannan of Kingsclere (Con)]

My Lords, no one had proposed anything like the Northern Ireland protocol until the second half of 2017. It is worth recalling the genesis. I was a Member of the European Parliament at the time and following the negotiations. In the immediate aftermath of the referendum, no one in Brussels proposed that Northern Ireland should remain under EU jurisdiction for regulatory purposes. They understood that sovereign countries are not in the business of ceding part of their territory to foreign control. They understood that sovereign countries do not usually allow internal borders. All of the talk then was about finding technical solutions: Enda Kenny’s Government in Dublin negotiating in good faith with British authorities to try to find ways to keep the border open, on the basis that the UK and EU had pretty similar regulatory norms and could trust each other’s standards.

What changed? It was a very sudden moment, around October 2017. I remember Guy Verhofstadt coming to the Constitutional Affairs Committee with his customary self-satisfied grin, saying, “We have now made it part of our negotiating mandate that there must not be any change in the EU side of the single market regulations as pertaining to Northern Ireland.” What had changed? We all know the answer: what had changed was that, on 8 June 2017, there was a general election that altered the balance in the other place.

From then, it became clear that a majority of people in both Chambers here were not prepared to leave the European Union except on terms that Brussels liked. That was not the phrase they used; the phrase was that they would not “permit a no-deal Brexit”. But let us think about it for five seconds: that is exactly the same, is it not? So, of course, the European Union—not unreasonably; I do not blame them—started putting on the table all sorts of outlandish demands that, up until then, it had not occurred to them to make.

Plenty of people have said, “Parliament ought to assert itself in this situation.” That is fine, but it strikes me as a little inconsistent for noble Lords who were strongly in favour of this no-deal Brexit stance, who then, if you like, ensured that this treaty was signed under duress, now to turn around and say, “You told us it was a great treaty. How come you have changed your mind after three years?” It was signed in a moment of EU overreach and it was bound to be corrected when the majority in another place changed. I am bound to add that there is something slightly odd about saying, after three years of negotiations, “Shouldn’t we have a little bit more time to talk?” What do noble Lords think we have been doing for the last three years?

I would like to put a question. I am one of the last speakers; some 54 noble Lords have spoken and, as far as I can tell, no one has taken issue with the contents as set out by my noble friend the Minister. Noble Lords will correct me if I am wrong. The aims of the Bill are that companies in Northern Ireland that do not export should be free to follow either UK or EU regulation; that there should be a green channel so that goods not intended for onward export are not subject to additional checks or tests; that Northern Ireland should be part of the general principle of “no taxation without representation”; and that the treaty should be arbitrated in the same way as all other international accords. Are those unreasonable demands? I see a couple of Lib Dem Peers theatrically pulling Paxmanesque leers of incredulity. I shall, of course, give way.

[Lord Purvis of Tweed (LD)]

I thank the noble Lord for giving way since he was obviously referring to me. I am wondering about the noble Lord’s assertion—a serious one: that Parliament was misled by the Prime Minister of the day; that the deal that they presented to Parliament was made under duress. We were not informed about that being the case, but that is the case that he is making. Is that correct?

[Lord Hannan of Kingsclere (Con)]

There is absolutely no question that the Northern Ireland protocol would not have been agreed had there not been an anti-Brexit majority in another House that was saying in terms, and had taken the legislative agenda and legislated to say, that they would not permit Brexit to happen except on terms that Brussels liked.

I finish by saying that if there is a conflict between respecting the basis of the Good Friday agreement—which rests on the idea of devolution and power sharing—and an overseas treaty obligation, I hope that any British Government would pursue the former objective. That should go almost without saying. If we were not in this situation where a large chunk of the country will automatically want to side with the EU, whatever its position is, that would be an almost banal statement. If there is a conflict between the protocol and our obligation to the people of Northern Ireland, I hope that any British Government would honour their obligation to the people of Northern Ireland.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I begin by expressing my appreciation for the very large number of thoughtful and informed contributions we have heard during this debate. It has been an honour to have heard it and now to become a part of it. It has grappled with not only the grave political and constitutional matters before us but has cited the Marquess of Salisbury, by my noble friend Lady Nicholson, Montesquieu and The Spirit of the Laws by the noble Lord, Lord Morrow, Shakespeare’s “The Merchant of Venice” by my noble friend Lord Moylan and that peerless advocate and exemplary parliamentarian Sir Edward Carson by the noble Baroness, Lady Hoey. The debate also heard the expression “Piss off” used by the noble Lord, Lord Russell of Liverpool, which I had perhaps not anticipated hearing in a debate in your Lordships’ House.

On behalf of the whole House, I am sure, I echo the words of the noble Lord, Lord Rogan, and others on the loss to our counsels constituted by the death of Lord Trimble. I also echo his comments on the loss to Lord Trimble’s community, the whole of Northern Ireland and his family.

Before I turn to the points raised by various noble Lords, I will briefly restate the reasons for introducing the Bill. The Northern Ireland protocol was agreed with the best of intentions, to ensure that the Belfast/Good Friday agreement was protected in all its dimensions as the United Kingdom left the European Union. The departure of the United Kingdom from the European Union is, as the noble Baroness, Lady Fox of Buckley, put it so trenchantly, a UK matter. It is not to be balkanised in terms of how it played out in London, Northern Ireland, Scotland or Wales. It is a United Kingdom matter.

But in its practical operation, the protocol is causing practical problems for people and businesses in Northern Ireland, including disruption and diversion to east-west trade. That disruption is present in the rest of the United Kingdom and it is causing significant costs and bureaucracy for businesses and traders.

Moreover, political life in Northern Ireland is, as your Lordships have heard on numerous occasions, built on compromise and power sharing across communities. However, as noble Lords have also heard, the protocol does not have the support of all communities in Northern Ireland. The noble Lord, Lord Dodds of Duncairn, was but the first to explore this point. As a result, we are seeing political and social stress in Northern Ireland, including the non-functioning of the Northern Ireland Executive and Assembly. It is clear that the protocol is putting strain on the delicate balance inherent in the Belfast/Good Friday agreement.

It remains the Government’s preference to reach a negotiated agreement on the protocol. I could not associate myself more with the comments from all sides of your Lordships’ House—the noble Lords, Lord Triesman and Lord Bach, on the Benches opposite, the noble Baroness, Lady Wheatcroft, and my noble friend Lord Tugendhat—on the importance of negotiation and the hopes the Government have that it will ultimately bear fruit. My right honourable friend the Foreign Secretary has reiterated this. He and Vice-President Maroš Šefčovič have agreed that officials should meet to discuss technical solutions. The Bill contains provisions to implement any future negotiated agreement with the European Union. I can give an assurance at this stage to my noble friend Lord Frost that we are clear that negotiations must be able to address the full range of serious issues caused by the protocol. The Bill is set up to enable us to do precisely that.

In answer to a point raised quite early in the debate by the noble Lord, Lord Ricketts, our EU partners and friends are aware of this Bill. They are aware that negotiations continue and recognise that there are problems to resolve.

My noble friend Lord Forsyth of Drumlean spoke early in the debate about the manner in which the protocol has been operated. I will revert to that point when I discuss, at a level I think appropriate to Second Reading, the implications of the Government’s stance for international law. However, I must stress to your Lordships’ House that the problems created by the protocol are urgent and require swift action. The Taoiseach, the Irish Premier, said publicly last week that the protocol as it was originally designed was a little too strict. These problems are of long standing and we now seek to address them. But while we engage in dialogue with the European Union, we must also ensure that we have covered all bases and that the United Kingdom Government have the ability to implement durable solutions in any scenario.

I now propose to turn to some of the specific themes and questions raised in this evening’s debate. I do that against the undertaking that if I should fail to refer specifically to the contributions of any of your Lordships or fail to give consideration to any of your Lordships’ arguments proper to this stage of Second Reading, I am happy to engage with your Lordships in writing or in person in the corridors of this place, or for that matter, elsewhere.

The matter that featured most strongly in your Lordships’ deliberations today arose out of the matter of international law and the argument from necessity. The Government have already published a statement of their legal position on the Bill and their position is that it is lawful and necessary. The noble Lord, Lord Birt, from the Cross Benches and my noble friend Lord Kirkhope of Harrogate seemed to suggest to your Lordships that the voice of the legal profession was as one in saying that this was not the case. That is not so. The Government have a worked-out position in international law and there is no reason why we should not take it forward.

The United Kingdom exercised its sovereign choice to leave the European Union single market and customs union. I discern that that course was not universally approved by your Lordships’ House. But the peril that has emerged was not inherent in the protocol’s provision. As to the universal opposition, which some of the contributors to this debate seemed to throw up, it is in the nature of law that it is often adversarial. It is in the nature of law that parties will have different approaches, just as it is in the nature of sincere friendship that sincere friends will often disagree, even on the most fundamental matters.

The strain that the arrangements under the protocol are placing on political institutions in Northern Ireland, and more generally on socio-political conditions, will leave the Government with no option but to take action if they cannot reach a negotiated solution with the European Union.

I listened with great interest to the comments as to law made not only by the many distinguished lawyers on the Benches of this place but from lay people concerned about the implications of the step that the Government were proposing to take. Opening for the Opposition from the Front Bench, the noble Baroness, Lady Chapman, began more correctly—or less wrongly—by saying that it was “likely” that this would amount to a breach of international law. Then she recovered the party line and said that it did breach international law. The curiosity was that I think that the lay people contributing to this debate about international law were, in fact, nearer to the truth than distinguished commentators such as the noble Lord, Lord Pannick, or my noble friend Lord Howard of Lympne, because the fact of the matter is that it is not possible—

[Lord Purvis of Tweed (LD)]

I do not want that honour.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord and will revert to him in due course. It is not possible to equiparate international law with domestic law. There is simply not enough of it and it is too dependent on facts and circumstances which will not apply from case to case to come up with a precedent which would allow noble Lords who have spoken in these terms to speak with such certainty.

Should I address the noble Lord, Lord Purvis of Tweed, at this stage? At an early stage in these proceedings, he spoke about the nature of the plea to necessity. I say again that it is very different from the interpretation of a domestic statute. Of course in international law there are similarities with domestic legislation, and of course in international law, often being a matter of paction, there are similarities with the law of contract. But it cannot be equiparated with, to use a metaphor that emerged from the Cross Benches, a contract for the sale of sausages. It is too complex and too fact-specific. That point was continued by the noble Baroness, Lady Suttie, my noble friends Lady McIntosh of Pickering, Lady Altmann and Lord Kirkhope of Harrogate, my noble and learned friend Lord Garnier—I am sure that I have missed others out; as I said, my undertaking is to engage with your Lordships to assist them in moving this forward—and, I decipher from my scrawl, the noble Lord, Lord McDonald of Salford, speaking from the Cross Benches. The assertion that the Government’s position breaches international law is too bold and lacking in nuance. I submit that we are entitled to proceed on the basis that we anticipate that the protocol will be operated in a manner that reflects the unique and serious circumstances against which it was drawn up.

The doctrine of necessity was approached by the noble Baroness, Lady Crawley, and my noble friend Lord Hannay of Chiswick in particular, who equiparated—if I misattribute this to my noble friend, I apologise to him and will happily correct it—invocation of the doctrine of necessity with the law of President Putin. Far from it: there is authority for the existence of a defence of necessity dating back at least to the early 19th century. It was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube. It formed part of the International Law Commission’s articles on state responsibility, drawn up in 2001, as the Government’s statement on their legal position notes. In 1995, the Government of Canada justified steps taken to protect the Grand Banks fisheries on the basis that it was necessary to do so. If fisheries in the Atlantic are important, how much more so is the extension of democratic rights across the whole of this United Kingdom?

Invoking the doctrine of necessity does not repudiate international law or the international rules-based order. It is part of the international rules-based order. The noble Baroness, Lady Kennedy of The Shaws, my noble and learned friend Lord Clarke of Nottingham, the noble Lord, Lord Bach, and my noble friend Lord Tugendhat stated that the Government were undermining the rule of law and that this constituted a flagrant breach of the rule of law. Again, by invoking the doctrine of necessity, we operate within the framework of international law and—

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, again, with the utmost respect, I decline to give way to the noble Baroness. She has my assurance that I will engage with her.

[Lord Purvis of Tweed (LD)]

The point is to answer noble Lords.

[Lord Stewart of Dirleton (Con)]

I hear the noble Lord; I will not give way.

It remains the Government’s preference to reach a negotiated agreement on the protocol, and further discussions are now under way with our European Union counterparts with the aim of identifying shared solutions. I can give my noble friend Lady McIntosh of Pickering repeated assurance of the importance of negotiation. We will continue to work closely with the European Union on the crisis of Ukraine, as we will with the United States and with all friendly powers and democracies throughout the world. We have always said that we want to fix the problems created by the protocol, in part so that we can focus our full collective energy on global challenges such as these.

The point was taken up at various points during the debate that the Bill threatens Northern Ireland access to Ireland and to the wider European Union single market. I stand before your Lordships in place of my noble friend Lord Caine, who I feel is far better equipped to answer these questions, drawing on his extensive experience of affairs in Northern Ireland. Again, he will undertake to engage with noble Lords on that point. Any perception of risk posed to the EU single market can be managed through market surveillance activities delivered by relevant United Kingdom bodies which will continue to prevent, deter and remove non-compliant and unsafe activity to protect the consumers of both the United Kingdom and EU markets. Market surveillance will follow the risk-based and intelligence-led approach as it does at present. As we have said all long, our preference is for a negotiated solution, and we stand ready to discuss appropriate assurances with the European Union.

The noble Baronesses, Lady Ritchie of Downpatrick, Lady Doocey and Lady Ludford, and the noble Lord, Lord Browne of Belmont, raised matters specific to agribusiness and dairy farming in particular. Again, I offer the House assurance that negotiations continue.

I am grateful to my noble friend Lord Frost for his account of the current economic situation and his summary of the historical situation in 2009 which my noble friend Lord Hannan of Kingsclere joined with his customary brio and, in the process, released a cat among the Liberal Democrat pigeons. I am also grateful to the noble Baroness, Lady Fox, whom I took to adopt the historical summary which my noble friend Lord Frost advanced.

I come next to the noble Lord, Lord Purvis of Tweed, who again very early in the debate raised the important point of an impact assessment. As the noble Lord pointed out, the Bill does not have an impact assessment. The full details of the new regime will be set out in regulations alongside and under the Bill, including economic impacts where appropriate.

Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime to ensure that it is as smooth and as operable as possible. The Government are getting on with that task now.

The noble Lord, Lord Russell of Liverpool, seemed to invoke the concept of historical inevitability in his contribution towards the end of the debate. I am no Marxist but I am by no means clear that his exercise in foresight in relation to society in Northern Ireland will prove to be accurate.

A matter of grave and, if I may say, fully appropriate interest to your Lordships is that of the breadth of the Henry VIII powers. The noble Lord, Lord Bruce of Bennachie, my noble friend Lord Northbrook, the noble Baroness, Lady Ritchie of Downpatrick, once again, my noble and learned friend Lord Garnier, and the noble Baroness, Lady Meacher, in particular, raised these matters, and I apologise to other noble Lords whom I have not mentioned by name.

The Bill provides specific powers to make new law where we are disapplying the EU regime and where such law is appropriate to make the Bill’s regime work. These powers are restricted. They can be used only in connection with certain provisions and subject matter of the protocol, for example changing valued added tax rules in Northern Ireland.

It is important to emphasise that we are engaged in negotiations. We are not, as the noble Lord, Lord Kerr of Kinlochard, said, engaging in blackmail; nor are negotiations, as the noble Lord, Lord Thomas of Gresford, said, engaged in attempting to bully the European Union; and nor, as my noble friend Lady Altmann suggested, have we by this proposal become an elected dictatorship.

These provisions are necessary. They allow the Government to act as quickly as possible to deliver new policy arrangements, for example to introduce the green and red lane for traders. Since the Bill was introduced in June this year, the Government have consulted extensively. There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.

I am being warned once again: noble Lords will doubtless be glad to see the back of me. The steps which we are taking are necessary to reflect the unique and dynamic situation in which the Bill passed in the other place.

In conclusion—

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it may assist the House to know that we from these Benches can confirm our support for the amendment in the name of the noble Baroness, Lady Chapman, and the amendment we have just heard.

If we are to scrutinise legislation properly in this House—which is our constitutional duty—there is also a duty on us to highlight areas where we are prevented from doing so because the Government have not presented sufficient information. There is clear precedent for this. We did so on the Professional Qualifications Bill, when the mood of the House was reflected to the Minister in very clear terms that accompanying information was devoid of sufficient information and that we would not progress discussion of it unless further information was provided. To his credit, the then Minister, the noble Lord, Lord Grimstone, provided that. We stated in clear terms when the Government presented more than 350 government amendments to the Subsidy Control Bill shortly after they introduced it that they needed to bring further information. To his credit, the noble Lord, Lord True—now the Leader of the House—indicated that the Government would change their position and allow for more debate.

The Government have not sufficiently responded to the desires expressed both at Second Reading and by the committees of this House for further information. They have not responded properly to the Delegated Powers and Regulatory Reform Committee report, which was excoriating in its condemnation of the use of regulation-making powers. As we have heard, the Government have failed to bring forward an impact assessment to show their own estimate of what impact policy options taken to present the Bill will have. The House will recall that I quoted from the original impact assessment of the protocol legislation, so it is fair to ask for the successor legislation, which will have equally profound implications, also to have impact assessment information. The Bill itself is extremely controversial, and it will have an impact on the business community, society, trade and the wider economy. Therefore, an impact assessment is vital.

This is not just a debating point. The Cabinet Office in its 2022 Guide to Making Legislation is very clear on what the requirements are on departments when they bring forward legislation. Section 13, on impact assessments, says:

“The Government has international obligations in free trade agreements to conduct impact assessments on regulation that has an impact on trade.”


Clearly, this Bill has such an impact. It goes on:

“A development, options or consultation stage impact assessment must be submitted alongside any bids for legislation, and a final proposal stage impact assessment must accompany requests for collective agreement to the policy in a Bill.”


The guide says clearly:

“The final impact assessment must be made available alongside bills published in draft for pre-legislative scrutiny or introduced to Parliament.”


When the Advocate-General for Scotland replied to me at Second Reading, he said that the Bill did not have an impact assessment but that

“full details of the new regime will be set out in regulations”. —[Official Report, 11/10/22; col. 767.]

That is just not good enough. We need to scrutinise these now.

On delegated powers, I remind the House that the Constitution Committee report concluded in paragraph 29:

“In examining clause 9, the Delegated Powers and Regulatory Reform Committee concluded: ‘[l]egislation has preceded policy development rather than vice versa’. We agree and recommend that clause 9 be removed from the Bill.”


We will discuss this later, but the essential point is that legislation should follow policy development, not vice versa. The Advocate-General said in response to the Second Reading debate:

“Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime … There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.”—[Official Report, 11/10/22; cols. 767-8.]


But on what? We do not have proposals in front of us. The Government’s own code of conduct for consultations states that they should be based on public questions. I have not seen a consultation document. I have not been able to find any draft regulations on which the Government have consulted. I have not been able to see any details of how the new regime might operate in practice, and we have not been presented with an assessment of what the responses are in order to shape views of costs. There is no footnote to the Cabinet Office document from this year that says, “None of this applies when a Minister so decides for political purposes”.

The Minister seemed confident that draft regulations will solve the problem, although he and the noble Lord, Lord Ahmad, did not spell out in detail what they will be; we will hear that later in Committee. I remind the House that we have been furnished with draft orders before, when we asserted our desire to receive them. However, at Second Reading, the Advocate-General contradicted himself. In defence of the Government’s legal position, he said that

“the peril that has emerged was not inherent in the protocol’s provision”,

but, later, he said that

“the problem lies in the protocol and not in its application”.—[Official Report, 11/10/22; cols. 764-68.]

I suspect that a witness contradicting himself in court might have been pounced on by a certain advocate, but we in this House need to see the draft regulations if they are the fix for the root causes, as the Minister said.

Finally, we need formal reporting. We need detail on where the negotiations stand and what the current areas of consideration are. In Committee in the Commons, the then Paymaster-General said:

“I am not sure how much more could be done in terms of negotiation … Good faith negotiations to resolve the issues with the protocol have already been exhausted.”—[Official Report, Commons, 13/7/22; cols. 383-84.]


I think the whole House was encouraged by the comments from the noble Lord, Lord Ahmad, at the start of Second Reading, when he said that the talks have resumed and are of a positive nature. However, we need full updates with technical papers so that we can properly scrutinise this legislation and so carry out our constitutional duty.

[Lord Judge (CB)]

My Lords, I apologise to the House for being unable to speak at Second Reading. I put my name down but realised that I could not be present at the end of the debate. If noble Lords will accept my apology, I assure them that I will not now make a Second Reading speech; I will simply summarise what I believe to be the case: that, as proposed legislation, this is a lamentable Bill.

If we want a careful, detailed analysis of the issues in and chronology of this case—I recommend that we do, if I may say so—the report from the House’s Library is absolutely magnificent. I personally thank those who prepared it; I recommend it to your Lordships. Everybody wants to have a say, so I am not going to add to the long list of things that are required, but can I suggest three more?

First, the Constitution Committee has just reported. The power of its report is not merely in that it repeats the concerns expressed by the delegated legislation committee on the Henry VIII aspects of the Bill; it directly addresses the Government’s contention that there is no problem with the lawfulness of the Bill. The Government have so far treated the report from the delegated legislation committee with scant respect. We have not had an answer to it. We should not proceed with this Bill until such time as there is an answer to the delegated legislation committee’s report and to the Constitution Committee’s report. These are our committees. They are cross-party, and the reports speak for the committees as a whole.

My second concern is that there is litigation afoot. A judicial review of the protocol has been taken and is due to be heard in the Supreme Court on 30 November. My question is this: has any attempt been made to expedite the hearings so that they can come on more quickly and we can have the Supreme Court’s answers to the issues raised instead of saying, “Well, we’re going to have to wait for that decision so we must act quickly because we’re having to wait too long”?

Thirdly, a number of infringement processes have been taken against us by the EU. It would helpful if we could see our responses to those. We need to know where we stand in the formal proceedings taken by the EU that we are in contravention of our treaty obligations. They are not a matter of privacy. I understand that negotiations must be conducted privately and there is confidentiality attached to them, but surely not for our Government’s response to the EU’s requests for infringement processes to be looked at.

In the end, I am very glad that this issue will not be taken to a Division today. That is sensible, particularly because all sides of the House need to understand what the problems are with the Bill and why it is, in the word which I used at the time of Second Reading, which I did not take part in, a lamentable Bill.

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[Lord Bew (CB)]

The noble Lord has a point—but not as deep a point as he might imagine, because the Government have been consistent in saying that the primacy of the Good Friday agreement is the core of their position, in both the House of Commons and in this House. There are other details; there is phrasing. For example, as is well known, I am not as convinced of the need for language in this Bill about the Act of Union. I understand why it is there, but I am not convinced that it is relevant. There are other aspects that we will discuss, in the normal way, on amendments. There is detail that will come up later tonight, and there are things that need to be said, in the normal way. But this is not a normal discussion—

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord; he knows that I like and respect him. I am trying to follow the rationale of his argument with regards to us legislating here. Earlier, he made the case—he stressed it repeatedly—that the only purpose of the Bill as he can see it is for the DUP to return to the Northern Ireland Assembly. As far as legislators are concerned, does that mean that the DUP also has a veto on any regulations that come as a result of this Bill?

[Lord Bew (CB)]

We are in political negotiations. Here is our problem; I have already explained it. When I tried to persuade the noble Lord, Lord Dodds, I said, “Just believe the British Government when they say that the Good Friday agreement is the dominant thing”. We can see now what has happened here. You only have to read the Dublin newspapers, to be frank, to realise what has had happened.

We cannot undo a negotiation that we lost. It is not the officials’ fault; the Prime Minister had lost an election and was desperate to get in and to make any kind of progress to justify her existence. You cannot undo this; I am not suggesting that it is possible. You lose, you lose—end of story, at one level. However, at another level, what it means is that the EU is committed to the Good Friday agreement, and it does not understand what it is committed to. You only have to read Michel Barnier’s memoirs to see that he has no idea about the importance of the east-west dimension and that his description of the north-south dimension is literally fantasy, which has been derisorily commented on in all sections of the Irish media.

We are bound into this agreement, but we cannot be bound into a fantasy. We have to unhook. We must have a good-faith negotiation in which we have to acknowledge the things that have gone wrong on our side and the EU has to acknowledge that the version of the Good Friday agreement it thought it had is not the real agreement. There is a strand three, for example, which talks about the importance of the east-west arrangements and so on. You can see how the original misunderstanding runs through all the texts and leads to the difficulties we are now in. To go back again to why I agree with the noble Lord, Lord Howard, we do not need to ask the EU to change its mandate. We need to ask it to understand its mandate. Its mandate is the agreement. It does not take long to read it, by the way. There is a strand three about the importance of east-west relations, although you would not know it from Michel Barnier’s memoirs. You would not know it, and you would not really know what the north-south relationship is either. So, that is one reason why this negotiation has some potential, because both sides have to come to terms with their errors in the past.

I conclude with one thing, because I have great respect for the noble Lord, Lord Hain, and what he said about Baroness Blood—as did the noble Baroness, Lady Ritchie. However, we also have to remember what other former distinguished Labour Secretaries of State said in acknowledging this difficulty. The noble Lord, Lord Mandelson—who was deeply involved in saving this process—said last week that he accepts that the Good Friday agreement and the protocol do not sit easy together; the tension is there. The noble Lord, Lord Murphy, talked about this in this Chamber as long ago as 6 December 2018. Distinguished Labour Secretaries of State know that there is a problem. The existence of the problem was not really acknowledged by the noble Baroness, Lady Chapman, earlier this afternoon.

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It is disappointing that we find ourselves where we do today. There is not a need for this. Surely agreement is possible. I do not really know why Ministers are here doing this, when they should be in Northern Ireland or Brussels, talking to our EU partners and finding a resolution. Surely, this Bill or no, the only solution that will stick and last will be a negotiated one. We all know that, so I do not understand why there is not the grip, focus, determination, political leadership, buy-in and presence in the negotiations that is surely needed to reach a solution. With that, I beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, I rise to speak to Amendments 2 and 6 in my name and support those in the name of the noble Baroness, Lady Chapman. As we start our customary, more-detailed consideration of legislation in Committee, I reflect on the point made by the noble Baroness, Lady Fox, who thought that we were preventing proper detailed scrutiny in a bullying way. However, I cannot see her in her place. Maybe she popped out. I look forward to her return to take part in the detailed consideration of the Bill.

I very much agree with the noble Baroness, Lady Chapman. I have considerable doubts about whether we will be able to legislate an agreement with the European Union. Fundamentally, we are tasked with an almost impossible job. I therefore agree that her amendment is a kind of security for this legislation: it does its best in making the Bill consistent with customary international law. We will also debate this on the next two groups. If we are to see a political agreement, what is the best way of legislating to allow that to be in place? I believe profoundly that this is not the way that it should be done. Nevertheless, if it is done this way, there should be some form of security area.

I very strongly agree with the noble Lord, Lord Kerr, that we should not pass legislation which is a clear breach of international law, as the Constitution Committee reported. Concern about government probity was highlighted earlier: if we have an amendment that relies on the Government themselves to exercise discretion on the exercise of powers, I have my doubts whether they would bring forward a clear view on that discretion. For example, under Amendment 70, the position of the former Paymaster-General in Committee in the Commons would have been that the condition would have been satisfied because talks had been exhausted. However, we now know that they have not been. That is not as a result of the Bill. Maybe the noble Lord, Lord Bew, is right. However, I suspect that if the talks were exhausted in July when we had the Bill in Committee in the Commons, and are not while we have it in Committee in the Lords, it is about the political basis. I am therefore not sure that the security arrangements would effectively be watertight.

My amendments, supported by my noble friend Lady Ludford, are straightforward. They are also part of a form of security that should be updated now, then continuously on the basis of these talks. As I mentioned earlier, the Commons was told in Committee that they had been exhausted, but new life has now been breathed into them. The Government said previously that this was owing to EU intransigence. Now Minister Steve Baker tells readers of the Times at the weekend that the Government say that talks are progressing because he stretched out a hand of reconciliation. Setting aside the contradiction, the reality is that we should be provided with more information, from now on and going forward, on the level and content of these talks.

For example, the EU proposals in October 2021 themselves said that there should be changes to the structure of ongoing talks and of the relationship between the EU and the people and institutions of Northern Ireland. However, I have not seen the Government’s response—the alternative presented by them in those talks. That would inform not only the mood of this House but our ability to pass legislation that gives regulation-making powers over the structure of that. I know what the EU has proposed; I do not know what our Government have proposed. If we are to consider, believe and call out EU intransigence, that case is harder when we know what the EU has put on the table but do not know what the UK has. How on earth can we come to the conclusion that it is being intransigent in these talks when we in this Chamber are effectively blind?

Now I think I understand, fundamentally, the dilemma of the noble Lord, Lord Dodds. He argued for Brexit, the majority of the people in Northern Ireland voted against it. He argued against the protocol, but the majority of the UK and the Conservatives inflicted that on him. This is a difficult dilemma, but ultimately it will mean that Northern Ireland, one part of the UK, will remain in an economic area of another entity, the EU single market. The only sustainable way that that can ever be for the benefit of the people of all parts of the UK is with agreement with that other entity. You cannot unilaterally legislate to enforce on another entity when you have already accepted that we are part of that entity. It is just an impossibility, so there has to be agreement, and in order for us to do our job in this House we have to know what the UK is putting forward in those talks. I should not imagine that our amendments will present the Committee with much difficulty.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis, for their probing amendments. I agree with them and believe that there is a mandatory obligation on the Government to provide us with details on the negotiations and to ensure that the regulations are published—many noble Lords across this Committee agree with that—so that we know what is actually going on.

I agree with the noble Baroness, Lady Chapman, that it would be much better if Ministers were investing their time in negotiations with a large degree of rigour with the European Union to produce the desired outcome in respect of the protocol with mitigations. That would achieve everybody’s objectives, including addressing the democratic deficit and the needs of those in the haulage industry and others so that there is no diminution in the good work that has already been achieved and so that better things can be obtained in terms of what we can gain by access to both the UK internal market and the EU single market, because our economy is much better when we have dual access.

In relation to dual regulatory zones, there is certain merit in them but there is also difficulty associated with them. That difficulty has already been highlighted by the dairy industry in Northern Ireland which, by and large, is all-Ireland in nature because the greater proportion of processing capacity lies in the Republic of Ireland. I think that point was referred to by the noble Baroness, Lady Doocey, at Second Reading. There are problems in relation to DAERA certificates and who grants them. I notice a quizzical look on the face of the noble Lord, Lord Caine, but I say again that Ministers should be involved directly in the negotiations. Those negotiations should take on renewed vigour. We should see the regulations and should have reports on those negotiations on a regular basis by way of parliamentary Statements to both Houses.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank all noble Lords for their contributions. I will go straight to the amendments. Amendments 1 and 70 in the name of the noble Baroness, Lady Chapman, would make the commencement of regulations under this Bill dependent on the Government confirming that they have been unable to reach a negotiated settlement with the EU and are of the opinion that all legal routes have been exhausted. I will repeat what I have said a number of times: our preference remains to resolve the issues around the protocol through talks. As I have already indicated, my right honourable friend the Foreign Secretary and Vice-President Šefčovič have already spoken a number of times to reiterate their shared commitment to finding solutions to this issue. Consequently, as I have also said already, the Government are engaging in constructive dialogue with the EU to find solutions to these problems. The Government will update Parliament on the talks with the EU at the appropriate time.

My noble friend referred to possible briefings. I cannot make the detailed commitment that my noble friend is seeking, but I will certainly reflect on his suggestion. I have just spoken to my noble friend Lord Caine about whether we could provide, as the noble Baroness, Lady Ludford, suggested, an outline at times; I certainly respect your Lordships’ insights on this. I will take that back and reflect on the proposals that have been put by my noble friend. As I said in concluding the earlier debate, to the Front Benches in particular, I assure noble Lords that I will seek to continue to update noble Lords on progress. I know that I speak with a similar commitment to that of my noble friend Lord Caine in dealing with Northern Ireland on this issue as well.

However, it is the Government’s view that we need to progress this Bill now to fix the practical problems that have been highlighted. Under these amendments, the UK would not be able to implement the solutions to the issues of the protocol while discussions with the EU were ongoing. This would mean that the EU could, for example, seek to introduce discussions indefinitely, under the knowledge that this Government would have to admit that negotiations had not reached a successful conclusion.

I am sure noble Lords would agree that we should not present ourselves with a choice between continuing negotiations indefinitely and no unilateral solutions for Northern Ireland. The Government—although I know that other noble Lords have different perspectives —have given their position as to why we feel it is necessary at this time to pursue and continue with the progress of this Bill.

We also believe that these amendments would require the Government to confirm that they have exhausted all legal routes under the withdrawal agreement before they could bring substantive provisions of the Bill into force. The Government have been clear that the Bill is justified, in our view, under international law. That is without prejudice to our position on other mechanisms available—

[Lord Purvis of Tweed (LD)]

Could the Minister clarify the sequencing of talks with the EU, Article 16 and the regulations under this Bill? Is it still the Government’s position that, before the regulations under this Bill, or Act, are brought forward, Article 16 would be triggered?

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I hear what the noble Lord says; of course, he is a real veteran of diplomacy. When I refer to technical talks, of course, officials take forward some elements of the nature and detail of the discussions or negotiations—I have said it now—which are taking place between ourselves and the European Union. I totally agree with him that words matter. That is why I keep emphasising the importance of the tone of the engagement. Notwithstanding the fact that the Bill is here in your Lordships’ House, we continue to engage and have those constructive exchanges, within the parties, with businesses and other partners, but also, importantly, with the European Union itself.

As I said in my earlier comments, we will explore practically how we can best respond to my noble friend Lord Cormack’s suggestion; I know him well. Of course, noble Lords will also appreciate—many in your Lordships’ House have been involved in negotiations —that we cannot provide a running commentary on every element. There was an Order Paper produced in June of this year, which set out the issues and what we believed some of the solutions to be. That was documented, outlining some of the key points and priorities for His Majesty’s Government. I give way.

[Lord Purvis of Tweed (LD)]

I am grateful. I read that paper, but that was prior to Michael Ellis, the Paymaster-General, when the Bill left the House of Commons, telling the Commons that talks had been exhausted and this Bill was therefore necessary. Now we are told that talks have not been exhausted. The EU has not changed its mandate, so what have the Government put on the table that is different from what it was in July?

[Lord Ahmad of Wimbledon (Con)]

My Lords, in any negotiation, parties will consider their position as discussions continue. What I have sought to do is provide an update to your Lordships’ House of the current position. I think the current trajectory of the talks, discussions and engagement is positive. As I have already highlighted, I will certainly seek—under the conditions of the discussions, with the sensitivities of many of these negotiations—to update your Lordships’ House accordingly.

[Lord Ahmad of Wimbledon (Con)]

The noble Baroness is right. The point of contention for us in any discussion has remained the ability to amend the protocol itself; that remains a key point. In all of these areas, as the discussions earlier have indicated, there are ways and means through. Of course, people will state their negotiating positions at the start and there are discussions to be had. What is clear to us is that the reason for the Bill, as well as for the good faith in which we continue to negotiate, is to find the desired outcome, which works for all communities in Northern Ireland and, importantly, addresses specifically some of the issues—including the east-west issue, which has been talked about quite extensively during Second Reading and in other debates.

I now turn to Amendment 6 in the name of the noble Baroness, Lady Chapman. The Bill is designed to bring swift solutions to the issues that the protocol has created in Northern Ireland. These solutions are underpinned by the designation of elements of the protocol as excluded provision. This is a domestic legal action to reflect the operation on the international plane of the UK’s assertion of the application of the doctrine of necessity, which was referred to earlier in relation to relevant parts of the protocol. Put simply, it is by excluding some elements of the protocol and withdrawal agreement in domestic law that the Bill is able to introduce, with necessary clarity and certainty for users, the changes to the law that are needed in Northern Ireland.

These amendments, through the conditions they impose, would undermine the ability to exclude elements of the protocol and, therefore, undermine the entire operation of the Bill. The first condition, in particular, that provision is excluded only if the EU and the UK agree to that, is, frankly, unworkable. While we are engaging in constructive dialogue with the EU to find solutions to these problems, it is surely quite evident that, if the EU were currently amenable to the full provisions of the Bill, we would already have agreed them; of course, that is not the position.

The second condition—that provision is excluded only if necessary as part of an Article 16 safeguard—also fails to meet the needs of the situation. Article 16 has inherent limitations in its scope. While the Government reserve their position in relation to Article 16—again, a point raised earlier in the debate—there would be a different action on the international plane to the operation of the doctrine of necessity. In sum, these amendments would in our view undermine the co-operation in the Bill, preventing it from delivering the solutions desired in Northern Ireland, which it is intended to provide.

On Amendments 3 and 67, in the names of the noble Lord, Lord Purvis, and the noble Baroness, Lady Ludford—

[Lord Purvis of Tweed (LD)]

These have not yet been moved.

[Lord Ahmad of Wimbledon (Con)]

My apologies; I have covered Amendments 2 and 43, which are the ones in this group. Without repeating myself, the notion of a regular report to Parliament on negotiations would in our view not be appropriate. It has been the position that the Northern Ireland protocol and negotiations regarding it are, like any other treaty, a matter for the Government operating under the foreign affairs prerogative.

In addition, as I have already said, it would not be conducive to a successful outcome in negotiations to provide a running commentary, nor, ultimately, do I believe the House would expect that. However, as I have said, where I can, I will look to update your Lordships’ House accordingly and we will update Parliament on the status of negotiations at the appropriate times. Also, the usual mechanisms for the House to scrutinise our activity will remain open to all noble Lords. I therefore hope that, at this juncture, with the responses that I have given, the noble Baroness will be minded to withdraw her amendment.

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[Lord Bew (CB)]

My Lords, I would like first to take up my noble friend Lord Pannick’s point about the Government being responsible for this situation. I will give a simple example of why that is not an easy quick-fire point. Looking at the joint report of 2017, it is, as Michel Barnier insists, an international document where both sides signed up. I understand in this House the great sanctity of international documents; I have heard that a number of times today. Having said that— and I respect it—our Government signal in that document that they are determined to maintain the east-west relationship as described in strand 3 of the Good Friday agreement.

We have signalled that there is a problem, which is now at the heart of the matter. It is not that we are suddenly saying late in the day, “Oh my gosh, we never thought of strand 3”; it is in that document. The EU was perfectly aware when it signed the document that the UK was going to take the view that the east-west strand 3 relationship is very important and should be maintained in its current and best form.

[Lord Purvis of Tweed (LD)]

Would the noble Lord give way on that point? I am just wishing to test that a little further with the sequencing. If he is correct about the agreement made in 2017, he also has to appreciate that it was the Government in 2019 who said that the protocol they negotiated satisfied that 2017 agreement. Therefore, they got parliamentary approval to ratify that. It became a treaty obligation which is now under question. If his argument is correct, then the sequence flows that the Government knowingly said in 2019 that the protocol satisfies that 2017 agreement.

[Lord Bew (CB)]

Both the EU and the UK Government said at a number of points—three at least—that this agreement is designed to protect the Good Friday agreement in all its dimensions. Bluntly, it has not done that. We talk about legal opinion and what the Government’s argument has been. The former Lord Chancellor, in the Commons debate on this, made exactly that point. I read the protocol agreement and what did I see? There is a reference to the Good Friday agreement and the protection of it in all its dimensions. That is not actually happening. Both sides signed up in good faith hoping that was what would happen.

Both sides signed up to the protocol, which says that the UK single market should be protected in its integrity. It might be reasonably expected for that to happen. Do noble Lords think that the current provisions for checks are protecting the UK single market in all its integrity? The idea that we both signed up for stuff is very simple. I could go on forever about how “We both signed up for stuff.” To be absolutely honest, neither side fully understood what it was doing.

In particular, the negotiating history of this is clear. The EU did not understand the Good Friday agreement. Michel Barnier’s memoir is perfectly clear. We cannot make pigs fly. Michel Barnier’s memoir is based on a view of the agreement and the undertakings in it which is based on pigs flying. We cannot do it with the best will in the world and for all our enthusiasm to be loyal to something we signed up for. We cannot make pigs fly. His version of what he was protecting is not what it is—not by a long way. The reason for this is our negotiating defeat in 2017 and Mrs May, having effectively lost an election, desperately getting into talks. We cannot undo that; I am not saying we can. In history, we signed up for stuff and we are trying to find a compromise, but we cannot make pigs fly. We cannot make nonsense be operative. It does not matter how morally committed we are.

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[Lord Pannick (CB)]

I entirely understand the noble Lord’s political grievance, but the fact is that Article 16 is part of the protocol and the political grievance cannot itself provide the basis for necessity in international law. This group of amendments is seeking to understand what the legal advice of the Government is.

[Lord Purvis of Tweed (LD)]

I always find it very interesting to follow the noble Lord. As I said before, I have been trying to understand his dilemma. For all the accusations against these Benches, suggesting that we may have been party to shifting goalposts to the Government is a stretch too far in any sport, whether it is rugby or football. We have been fairly consistent with our warnings, and I refer the noble Lord to Hansard when we debated the protocol and I raised these issues in 2019. We knew there were going to be the difficulties, because what the noble Lord wanted, we knew the Government were not going to satisfy. We have had three years of government gymnastics—I am mixing my sporting metaphors all over the place—trying to present a political argument which we knew was fundamentally flawed.

The only way that this will be sustainably resolved, if one part of the UK, Northern Ireland, is to remain part of the single market, is for there to be agreement. Unilateral actions against treaty obligations is not a sustainable solution to any of these problems. I understand when the noble Lord talks about a lack of trust. It is a stretch for him to make an impassioned contribution such as that and then say, “But I am going to argue passionately in favour of a Bill that gives unprecedented Henry VIII powers” to the exact same people he has said he had lost entire trust in.

[Lord Dodds of Duncairn (DUP)]

Do not worry, I will not be arguing that passionately for any Bill that could end up being withdrawn. We have been down this road before. All I say is that I support measures that, in my view, help to deal with the protocol issues that we have. I accept what the noble Lord is saying in terms of the LibDem position, although Layla Moran pointed out last year that triggering Article 16 would be a terrible thing and tragic, and all the rest of it, so it is not exactly totally consistent on the Article 16 point.

[Lord Purvis of Tweed (LD)]

As the noble Lord, Lord Pannick, said, there is a difference between recognising that there are mechanisms that could be put in place as safeguarding and rebalancing measures, and unilateral actions that seek to go beyond what Article 16 would be for the protocol. That is the entire point.

In supporting my noble friend’s Amendments 3 and 67, I understand that the Government will have prepared—the Advocate-General will correct me if I am wrong—a legal issues memorandum, a LIM, before the Bill was approved. That goes to the Attorney-General and to the Advocate-General for Scotland, and they will have approved this legal issues memorandum which, I understand, would have had to consider the very questions that the noble Lord, Lord Pannick, indicated with regard to the options open to the Government to meet their policy ambitions. That would have included the protocol element of Article 16, as the noble Lord, Lord Dodds, indicated. In many respects, and I cover many trade debates in this House, Article 16 elements are fairly typical WTO mechanisms of safeguarding and rebalancing. The legal issues memorandum will have had to consider these options. So, at the very least, the Advocate-General can confirm to the Committee that there was a legal issues memorandum, and it did consider all these options.

The next question, therefore, is precisely where the legal argument on necessity originated. Did it originate from the FCDO? I understand that the memorandum goes to the FCDO also, for the treaties department. I am sure the Advocate-General will say that he cannot disclose this information for us, but on an issue of this importance, where did the argument for legal necessity originate? Was it his department? Was it the Office of the Advocate-General for Scotland? He is in his place precisely because his predecessor resigned, saying that his position was undermined in his endeavour to find, to quote from his letter, “a respectable argument” for breaches of international law in the United Kingdom Internal Market Act. The then Secretary of State for Northern Ireland said, notoriously, that it was a “specific and limited” breach, but the noble and learned Lord, Lord Keen, struggled hard to find a respectable argument to present for it, and because the Secretary of State was honest, the noble and learned Lord resigned. I note that the Constitution Committee report said, as has been referred to before:

“In this case, reliance on the doctrine of necessity is not a ‘respectable’ legal argument.”


I think we will touch on it when we discuss whether Clause 123 stands part, so it will be very interesting to hear what the Advocate-General says in winding on this group in order to inform some of our discussions on the next group.

I have sympathy with what has been referred to by others and I have an inkling as to what the Advocate-General may have in the folder in front of him. He may say, “It’s a long-standing convention, for very good reason, that legal advice is not published in full”, and he is no doubt prepared to say it, but why my noble friend Lord Campbell of Pittenweem is correct is that we are now in a realm of significance, given the scale of what the breach of international law would be.

I will refer to it in the next group, but my noble friend provided an amuse-bouche of the case of Hungary and Slovakia, to which the Advocate-General had referred. I also read that judgment in full. It may help the noble Lord, Lord Bew, to know what the ICJ has found repeatedly. Let me quote from its judgment in one of the cases that the Advocate-General cited.

“According to the Commission”—


that is the International Law Commission—

“the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied;”—

this is the point I want to stress—

“and the State concerned is not the sole judge of whether those conditions have been met.”

So even if he is right, one state party cannot determine solely, and the ICJ has found that repeatedly.

Even if the Advocate-General for Scotland says that it is a long-standing convention and cites examples of where legal advice was not furnished—he may overlook some examples of where it has been, of course, but that is a separate issue—the area that I want to ask about concerns what the former Advocate-General for Northern Ireland and the Attorney-General, Sir Geoffrey Cox, said in Committee in the Commons.

“There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government … I invite the Minister … to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.”—[Official Report, Commons, 13/7/22; col. 400.]


Will the Advocate-General state why this has not happened? Will he provide the equivalent to this House in a Statement? We are asking the same as has been asked in the past of Attorneys-General.

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[Baroness Chapman of Darlington (Lab)]

Not any more.

[Lord Purvis of Tweed (LD)]

I hear he has changed. The former Paymaster-General, who is now the former Attorney-General, was citing the former Attorney-General Suella Braverman, who is now the Home Secretary—even I am struggling to keep up with what is going on. Nevertheless, the principle is clear that, if the then Attorney-General was happy to provide advice to the Times in her abortive leadership campaign, we humbly seek that Parliament be equally enlightened with an update on exactly what the Government’s position is.

[Lord Kerr of Kinlochard (CB)]

Perhaps I might provide a lifeline to the Advocate-General for Scotland, because I am a Scotsman too and I hate to see him being so tortured. The noble Lord, Lord Pannick, asked to see the legal advice. I am sure, as he was sure, that in reply the Minister will remind us of the convention. The noble Lord’s alternative option was that the Minister should tell us now what he was unable to tell us, as it was an inappropriate time, at Second Reading.

I have a third option. I was struck that nowhere in the Minister’s quite long speech at Second Reading did he ever fall into the trap of making the applicability of the doctrine of necessity his view. It was never him explaining that he believed the doctrine of necessity applied. It seems to me that the concerns of the House might be satisfied by a memorandum. A memorandum was produced in June and July, which was a singularly unsatisfactory document in my view. It looks even less good now, having been subjected to critique at Second Reading and by the noble Lords, Lord Campbell, Lord Purvis and Lord Pannick, tonight. However, there could be a second edition setting out the Government’s response to the arguments that have been advanced, including by the Constitution Committee. So I suggest that a third option that would satisfy me and might satisfy the noble Lord, Lord Pannick, would be for the Minister to undertake tonight to produce for us a revised edition of the pre-summer memorandum.

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[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Baroness for her intervention, and I hope I will be able to, if not clear it up directly, refer the noble Baroness to the statements in the Order Paper. Perhaps I may say, in relation to the amendments with which we are currently engaged in relation to publication of the Government’s legal advice, that it may well be—and I think I made the same observation to my noble friend Lady Altmann—that these points might be dealt with better in relation to later groups which will address the question of the protocol and the amendments which the Government propose. I give way to the noble Lord.

[Lord Purvis of Tweed (LD)]

The noble and learned Lord has just told the Committee that the problem is with the implementation of the protocol. In his Second Reading winding speech he said that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

So, which is it?

[Lord Stewart of Dirleton (Con)]

My Lords, the problems with which we are grappling lie in the implementation of the protocol: I think the protocol has given a basis upon which these implementations may be made.

[Lord Purvis of Tweed (LD)]

Is this the noble and learned Lord correcting the record now from his Second Reading speech? I am quoting directly from Hansard that

“the problem lies in the protocol and not in its application.”—[Official Report, 11/10/22; col. 768.]

But he is telling the Committee today that it is in its application.

[Lord Stewart of Dirleton (Con)]

The noble Lord promised at the very outset of Committee, when he opened the earlier debate, that this inconsistency would be pounced upon, and he has returned to the point. My answer to him is that the implementation has given rise to the difficulties we now face, and that the protocol has permitted that implementation to take place.

[Lord Stewart of Dirleton (Con)]

My Lords, the diversion of trade and the effects upon the confidence of the unionist community in their membership of the United Kingdom have given rise to the difficulties we now face.

As I was saying before dealing with that spate of interruptions from noble Lords, it has become apparent that one of the communities—I remind your Lordships of the importance of the concept of consent in the Belfast/Good Friday agreement—has recognised that the CJEU is a part of the problem, as unionist parties have cited the CJEU as a key driver of a major democratic deficit. The Bill therefore seeks to ensure that Great Britain and Northern Ireland courts will have the final say over the laws that affect their citizens. It will permit a referral mechanism to the Court of Justice of the European Union, recognising legitimate EU interests and supporting north-south trade. We consider this to be a reasonable step which places the matter in line with normal dispute resolution provisions in international treaties.

[Lord Purvis of Tweed (LD)]

On that point, would the Minister be able to cite any other agreement the UK has signed where the dispute resolution mechanism affords the UK the ability to bring forward unilateral legislative solutions which are contrary to the agreement we had signed? What other examples can he cite?

[Lord Stewart of Dirleton (Con)]

My Lords, that question brings me on to dealing with the terms of the argument in relation to Article 16, about which we have had some submissions from the noble Lord himself, the noble and learned Lord, Lord Judge, the noble Lord, Lord Dodds of Duncairn, and the noble Baroness, Lady Ludford. Triggering Article 16 would not solve the problems of the protocol. It would only treat some of the symptoms, without fixing the root causes of those problems. It has inherent limitations in terms of its scope. Such safeguard measures might address trade frictions but not the broader identified impacts of the protocol such as I have been founding upon. The legislation that the Government propose provides the comprehensive and durable solution required and certainty for businesses and the people of Northern Ireland.

[Lord Stewart of Dirleton (Con)]

My Lords, as your Lordships have heard from my noble friend Lord Ahmad of Wimbledon and the noble Lord, Lord Bew, this is not identified as an inconsistency by our counterparties in relation to this matter.

The Government’s legal position is that our legislation is necessary and justified, and we make that assertion without prejudice to our position in relation to Article 16—again, as your Lordships heard from my noble friend Lord Ahmad of Wimbledon earlier. Article 16 is expressly limited. It is the Government’s view that it would not solve all the societal and political issues identified, including those identified today in some of your Lordships’ contributions to the earlier debate, whereas the Bill provides a comprehensive solution to those problems.

The noble Lord, Lord Campbell of Pittenweem—who in another context is my learned friend—referred me to the examples I cited when winding up at Second Reading of cases which set out the doctrine of necessity. The Canadian fisheries case concerned the Convention on Cooperation in the Northwest Atlantic Fisheries, which was a treaty. The Hungary-Slovakia case to which I also referred was a dispute about an agreement between the two parties for navigation of a river and the construction of infrastructure. In any event, I think the answer to his point is that the concept of necessity and its application in these circumstances is admitted within the articles of state responsibility.

[Lord Purvis of Tweed (LD)]

I will refer to this in the next group, but the Minister might want to add a little extra with regards to the case he cited: the International Court of Justice threw out the Hungarian case on invocation of necessity. It said that

“Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about.”

I think there are some similarities in what we are hearing now, but could the Minister confirm that the ICJ did not accept Hungary’s case?

[Lord Stewart of Dirleton (Con)]

My Lords, in any case, there will be parties that are disappointed to a greater extent than others. The point is that one party proposes. That party does not determine the question; the determination of that question falls to someone else.

In relation to the point made by my noble friend Lady Altmann, our preference for negotiation clearly remains. As the Committee has heard, that negotiation is not interrupted or affected by the Bill moving through your Lordships’ House.

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Morrow (DUP)]

I thank the noble Lord for his comments. I did listen very carefully to what the noble Lord, Lord Hain, said and I want to read Hansard tomorrow to get better into my head exactly what he was saying, but I was struck by some of the things he said. Like the noble Lord, Lord Kerr, I voted against the protocol, as did every unionist in Northern Ireland—so it has no support among one section of the community.

We have long moved away from majoritism. As a matter of fact, I do not remember majoritism in Northern Ireland. That age has long gone and we were told that it would never return. Politics in Northern Ireland would be by consensus; that is what we were told. We were not only told it—they put it down in law. But I have yet to hear from many who berate this Bill that they are concerned about how the Belfast agreement has been kicked right, left and centre. I ask the noble Lord, Lord Kerr, to suppose for a second that this border was where it should be and not in the Irish Sea. Does anybody—but anybody—feel for a moment that that would not have caused the complete collapse of the Northern Ireland Assembly?

We have not collapsed the Northern Ireland Assembly as such. The Ministers are still in place, doing their tasks and getting on with it, because we did it in such a way. When Sinn Féin did it, they wrapped everything up. I have never heard one Member from either the Lib Dems or Labour—which surprises me—say that Sinn Féin has done wrong here. I did not hear it. Maybe it was said when I was not here, but I have never heard that said. I find that there is pick and choose. If unionists do something, they are a nasty lot, they are nasty people, but with Sinn Féin it is, “Oh no, they have a reason; they have a cause.” Well, we have a cause and we want to defend that cause.

In 1960 the UN went further and passed its decolonisation declaration, basically shifting its position to one of actively encouraging imperial powers to decolonise. Today, the UN still has a committee dedicated to the decolonisation of the small remaining colonies. If you examine its work, the UN is very clear that an NSGT is not a jurisdiction that is governed entirely by another country. Most NSGTs are largely self-governing. They remain classified as NSGTs because they are not entirely self-governing. Now, of course, I recognise that, in order to be formally classified as an NSGT by the UN, you not only have to meet the definition of an NSGT; you also have to persuade the Assembly to vote an agreement that a jurisdiction should be so defined.

I am not about to start a campaign for the UN to vote to classify Northern Ireland as an EU NSGT. However, it is clear, on the basis of the UN definition of an NSGT and the level of self-government enjoyed by existing NSGTs, that Northern Ireland not only meets the UN definition of an NSGT, but one in relation to which the colonial power—in our case the EU—controls more of the governance of Northern Ireland than do many officially recognised colonial powers in relation to their NSGTs.

The story of colonisation since 1960 has been the story of decolonisation. The actions of the EU arguably amount to the first example of new colonisation, as opposed to annexation by military force, since 1960. I find it quite extraordinary that the EU should have even dreamt of seeking this agreement. It does not reflect well on the EU at all that it should have requested this, and the fact that the UK Government had to fight it for even the most ridiculous four years, after the fact, is quite extraordinary. Of course, its justification was allegedly defending the Good Friday agreement—or Belfast agreement, whichever you choose—but this is utterly absurd.

The citizens of Northern Ireland deserve the full rigour of protection under international law in respect of their democratic right to political participation as our counterparts have in each of the other constituent parts of the United Kingdom or indeed any other country. However, that protection has been patently undermined by the protocol.

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord for giving way. I am concerned about his argument when it comes to the position of the new—again—Home Secretary. She said in July:

“The Northern Ireland Protocol Bill needs to be changed so that it actually solves the problem. … The bill’s ‘dual regulatory regime’ lets EU law flow into Northern Ireland in perpetuity … I’ve been fighting for while in government. Without them, the bill treats people living in Northern Ireland as second-class citizens.”


Does the noble Lord agree with Suella Braverman? If he does, will he be bringing an amendment to Bill to make sure it does not have a dual regulatory regime that allows EU law to flow into Northern Ireland?

[Lord Morrow (DUP)]

If the noble Lord, Lord Purvis, is asking me if I agree that Northern Ireland citizens are now treated as second-class citizens, yes, I do. Some people in Northern Ireland seem to be content to be treated as second-class citizens, because, like the noble Lord, they want to pull this Bill apart and the protocol to remain. I hear, in the debate today, some noble Lords saying that there are problems with the protocol, but in time that will be sorted out. Where will our economy and industry be? My noble friend Lord Browne will be making some reference to that a little later.

Article 21 of the Universal Declaration of Human Rights, among other provisions, states:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. … Everyone has the right of equal access to public service in his country.”


This has plainly been violated by the protocol, which has partly removed our right to take part in the Government of our country as it relates to 300 areas of law, both in terms of engaging in public service as a candidate and in terms of voting.

Of greatest importance, however, is that the plundering of aspects of our right to vote violates the Good Friday agreement. I hear many champions in this House of the Belfast agreement, and I have to admit that I would not be the best advocate of the Belfast agreement, and I am prepared to say that. But let those who are stand up, and then they will run into problems with their debate and where they are going. Specifically, the Good Friday agreement affords the people of Northern Ireland the right

“to pursue democratically national and political aspirations.”

Moreover, in the case of the Good Friday agreement, there is the additional international constraint arising from a foundational provision of the protocol, in Article 2, which specifically obliges the UK Government to ensure that there is no diminishment of any of the Good Friday agreement rights following Brexit. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


So now we confront the central absurdity: the EU pretended that an obligation that did not exist in the protocol existed, and that an obligation in the protocol that did exist in fact did not. There is nothing anywhere in the text of the Good Friday agreement saying that there cannot be a customs border, and there is something that plainly states you cannot erode the political democratic rights of the people of Northern Ireland, which was the plain consequence of placing a border down the Irish Sea.

Of course, I am not saying for a minute that the UK and the Republic of Ireland could not agree to avoid a hard land border, only that it is not required in the Good Friday agreement. In a context, however, where the Good Friday agreement prohibits—

--- Later in debate ---

[Lord Judge (CB)]

In that case, how do we know for a fact that Article 16 will torpedo them?

[Lord Purvis of Tweed (LD)]

My Lords, if the argument of the noble Lord, Lord Bew, is so powerful, why has he failed to persuade the noble Lord, Lord Morrow, who started his remarks by saying that he has no faith in any of these talks resulting in any agreement for two or three years at least? If the noble Lord, Lord Bew, cannot even persuade the noble Lord, Lord Morrow, he may struggle to persuade others who may be a bit more sympathetic to his arguments.

The noble Lord, Lord Bew, knows that I like and respect him, but let me scotch this point about Article 16. The Government insisted that they were working in the joint committee when others on the Conservative Benches were saying they should dump that work and trigger Article 16. We on these Benches said, “Let the joint committee process do its work, because that is what the Government negotiated in the agreement.” Now we have heard in Committee in the Commons that talks have been exhausted—no more on the joint committee; instead, we are bringing unilateral legislation. So the noble Lord will forgive me for being a bit cynical about the Government’s position. On the one hand, they are saying that they are using the joint committee and therefore will not trigger Article 16, and on the other that they are no longer in the joint committee and need unilateral legislation. I am afraid it does not match. That is perhaps at the heart of why there is still uncertainty over the Government’s proposals.

At the outset, I say that I am a borderer and live in Scotland—I was going to say that therefore I sympathise, but that sounds deeply patronising. I understand many of the arguments, as I said earlier to the noble Lord, Lord Dodds, because I raised them in the debates. We opposed the Government because we could see the situation was not only going to be detrimental but would effectively remove rights. But that is not something that our Benches or this Bill can resolve.

I respect both noble Lords who spoke with passion about this, but I put it to them that they and Suella Braverman cannot both be right. The new Home Secretary is on the record saying that this Bill will make citizens in Northern Ireland “second-class citizens” —this Bill, not the protocol. She is arguing for this Bill to be amended. She said in her article in the Times that she had argued that while in government. She is now back in government, so I do not know what will happen with the Government’s position in this Bill on a dual regulatory system, but maybe the noble Lords can inform me later on.

If the noble Lord, Lord Morrow, is arguing so strongly that this Bill will not have Northern Ireland operating under two systems, it is incumbent on him to bring amendments to it to remove the dual regulatory system and Clause 11 when we get to it. I look forward to debating those amendments, because he surely cannot support measures in this Bill which would allow Ministers to enforce EU rules on traders within Northern Ireland.

[Lord Morrow (DUP)]

I thank the noble Lord for giving way. All I wanted to say is that I am encouraged that I can get his support if we do that. Is that what he is saying?

[Lord Purvis of Tweed (LD)]

I will match his “Get rid of Clause 11” with “Get rid of them all”, because that is our position.

The Advocate-General said at Second Reading:

“the peril … was not inherent in the protocol’s provision.” —[Official Report, 11/10/22; col. 764.]

But he then said today that the “problem lies in the protocol”, which the Government themselves negotiated. So, we are back to the situation regarding the Government’s proposals, and it seems that the Government are going to rest on an assertion of necessity, with an assumption that it is not going to be tested. It surely is not welcome for us, in passing legislation, that the Government are effectively asking people to challenge it in the international courts—I can only imagine that it would be the ICJ.

The ICJ has stated in clear terms that invoking necessity on wrongfulness and not adhering to a treaty commitment cannot be a permanent solution. So I ask the Advocate-General, if he responds to any of the points that I am going to make, whether the Government agree with that. The ICJ has stated on a number of occasions that, even if invoking necessity was upheld, it is only temporary in order to remove the grave and imminent peril; it is not permanent, because it still means that that party is in breach of the treaty.

So if long-term, permanent changes are required to be made, that will require protocol changes and treaty changes, and the Government have not said that. They cannot invoke necessity if they believe that this is a permanent solution. The reason why I say that with confidence is—the Advocate-General, in schooling the noble Baroness, Lady Chapman, and me as non-lawyers, said we were “less wrong” on this—that, customarily in international law, we have to look at the record of the ICJ. I asked the Library of the House to provide me with information on when the ICJ has upheld parties who have invoked necessity. It has never been upheld, for the very good reason that it has to be limited, and “grave and immanent peril” on a cumulative basis is considered an exceptionally high bar. The Advocate-General must know that.

Of the two cases that the Advocate-General cited, the one involving Hungary and Slovakia—which was referred to by my noble friend—I found fascinating, as I mentioned before, when I read the judgment. The Advocate-General said that necessity

“was recognised by the International Court of Justice in 1997 in a case between Slovakia and Hungary regarding a dam on the Danube.”—[Official Report, 11/10/22; col. 765]

As I referred to before, the Government seem to be relying on one case regarding communist Hungary in 1989 which the ICJ threw out.

The second case mentioned, involving Canada and fisheries, could refer to two cases. In one, the ICJ was asked by Spain to adjudicate because Canada had seized a vessel, invoking necessity, but the ICJ said that it could not look into it because Canada had passed legislation at that time to have a reservation from the ICJ, so the case could not even be heard. The other case relating to the Grand Banks should worry the Minister, as it was about imposing licence fees. Canada invoked necessity; the US responded saying that it would pay the fees of the fishermen and then claim reimbursement from Canada; then Canada amended its laws, which brought in all other aspects, and it was resolved by Canada removing the licence fees. Now, if that is a precedent, it is a worrying one, because I can see that there will be consequences with the EU as a result of this legislation. There will be reciprocal action and the UK will pay for it.

So can the Minister confirm what the Library told me, that there has never been a successful invocation of necessity? Can he tell me if there has ever been a case where any party has invoked necessity for framework legislation? I could not find it, so presumably the Minister will be able to help me.

[Baroness Chapman of Darlington (Lab)]

My Lords, I rise very briefly; I do not see any point in repeating what other people have said. I added my name to the attempt by the noble Baroness, Lady McIntosh, to remove these clauses, and it has been observed by some that this is a wrecking move. I guess it is, in a way, if you do not agree with a Bill and feel unable to amend it in a way that would make it satisfactory, you attempt to remove clauses which then unravel it. We are not happy with this piece of legislation and we are seeking ways—some of them creative, others more blunt, as this one is—because we think the Government are taking the wrong approach.

The points about necessity have been made at length. I think the Minister needs to be as thorough as he can—although perhaps not as lengthy as he can, just very clear. I think we want clarity about exactly where the Government think they are on this. My suspicion is that the Government are backfilling their answers as they go along and that they did not really think about this, because this piece of legislation was not really thought about. Introducing it in the first place was a political act to give the impression that the Government were playing hardball in negotiations. It has kind of served its purpose, as some people have explained, over the months. Ministers are now having to justify where they have got themselves, and we are all intrigued about where it is going to go next.

I do not know how the Minister is going to respond to the concerns raised by the DUP, which are incredibly serious and ought to be considered with the utmost thoughtfulness. Especially in the absence of any draft regulations, I do not know how those concerns are going to be dealt with. It is all very unclear. This is not the way we should proceed with any issues, and especially not when it comes to Northern Ireland.

We have been around the houses on the issue of Article 16 rather a lot. It is just ridiculous to claim that Article 16 lacks the flexibility to be able to deal with the concerns that have been raised—obviously it does. The Minister’s explanation for why that is no longer the Government’s preferred route does not really add up. Again, I think that in their desire to have some legislation, they are having to make up reasons going backwards, and that is why they are now coming unstuck on the Floor of the House.

I listened carefully to the noble Baroness, Lady Hoey, and her concerns about the haulage industry. It is absolutely right that those concerns should be raised. I would be very happy to go to Ballymena and to meet Mr Jackson to listen to what he has to say, because I am sure that what he said in his letter to us is true. Of course we ought to be looking at ways to make sure that those issues are fixed, but I do not think that this is the right way to go about it. This is not about the EU always being right; I think the EU was wrong to link these issues with Horizon. They have absolutely nothing to do with each other. We should have made progress on both issues, but separately. So, we do not always take the EU’s side. That is just not true.

The principal concern we have is that unless we get at the very least the things we have asked for in our earlier amendments—specifically these draft regulations; that is really important—we are going to be looking at ways to make sure that the Bill does not proceed as smoothly as the Minister would like. This is not a tweaking issue; we just do not think the Government are going about this in the right way.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, as we approach what I think will be the final series of amendments for discussion tonight, I am grateful to all noble Lords for their thoughtful and entirely well-intentioned contributions to this important debate.

Clause 1 summarises the effect of the Bill and gives vital clarity on how it will function. The noble and learned Lord, Lord Judge, was critical of its drafting—indeed, of its presence in the Bill itself. He may be right to be critical but there have been, and will always be, changes in the manner in which legislation is drafted; there certainly have been over the past few years. In a matter of this sort, it is perhaps important as a matter of perception, given the history to which some contributors among your Lordships have referred, that the Bill carries assurances in Clause 1.

The clause sets out that the Bill makes domestic provision in connection with the disapplication of specific areas of the Northern Ireland protocol that are causing problems. It also sets out that the Bill provides Ministers with powers in connection with the further disapplication of additional areas of the Northern Ireland protocol according to specific purposes, as well as powers to make new domestic arrangements. The clause also clarifies how other legislation, such as the important Acts of Union, is affected by the Bill. I recommend that the clause stands part of the Bill.

Clause 2 will underpin the essential functioning of the Bill by confirming that any part of the protocol or withdrawal agreement that has been excluded by the Bill’s provisions has no effect in domestic law. I think it is recognised around the Committee that, at this point, we are coming away from the preamble of Clause 1, as we might call it, into the heart of the Bill and what it intends to accomplish. I certainly took the noble Baroness, Lady Hoey, and the noble Lords, Lord Morrow and Lord Browne of Belmont, to understand that fully when they talked about ripping the heart out of this Bill through these proposed amendments.

The noble Baroness, Lady Hoey, and others, including the noble Baroness, Lady Chapman of Darlington, referred to the difficulties. I think that, wherever it stands on this Bill, the Committee is united on the fact that there are grave difficulties in Northern Ireland. I had the honour of briefly meeting the commercial director of McCulla Ireland on a visit to your Lordships’ House; I listened with great interest and concern to the matters raised by him.

The vital approach of these clauses is to amend the relevant provisions of the EU withdrawal Act that currently give domestic effect to the protocol and withdrawal agreement. This technical provision is, as noble Lords have recognised, vital for the Bill to function as, without it, there may be a lack of clarity as to which of the existing protocol and EU law regime, on the one hand, and the revised operation of the protocol, on the other, has effect. Where this Bill or its powers do not exclude a provision in the protocol or withdrawal agreement, that provision will continue to have effect via the EU withdrawal Act, as now. In answer to a point made in a debate on an earlier group, I emphasise that what the Government are proposing is not the ripping up of the protocol but directed action to those parts of the protocol that are not working. The Bill seeks to leave untouched the remainder of the protocol’s passages that are providing benefit, as was always intended to be the case. I therefore recommend that this clause stands part of the Bill.

Clause 3 supplements Clause 2 and will remove the requirement for courts to interpret relevant domestic law in line with the withdrawal agreement in so far as that would lead to an interpretation of domestic law that is incompatible with the Bill and any regulations made under it. This is done by the amendment of the relevant provision of the EU withdrawal Act, which currently requires courts to interpret relevant separation agreement law and domestic law consistently with the withdrawal agreement. Instead, it is made clear that no such interpretation should be made if this would be incompatible with provisions of the Bill or any regulations made under it. It is vital to provide certainty as to how the regime should operate, so I recommend that this clause stands part of the Bill.

We have had, I submit, a lengthy and important debate during this stage of the Bill. I seek noble Lords’ forbearance—

[Lord Purvis of Tweed (LD)]

My Lords—

[Lord Stewart of Dirleton (Con)]

I am coming to the noble Lord’s point. I am not proposing to wind up immediately. I acknowledge the importance of the debate we have heard. I pray for noble Lords’ forbearance if I do not respond to every point that has been canvassed specifically in relation to the doctrine of necessity, which we had a debate about in relation to the earlier group.

I anticipate what the noble Lord, Lord Purvis, is about to say. He put certain points to me in relation to the information that he had from the Library of your Lordships’ House. He cites the occasions on which the doctrine of necessity has been founded and outlines significant aspects of those cases to your Lordships’ House, but every legal case will stand on its own merits, and comparison of individual facts and circumstances does little to advance the argument as to the role of necessity in the unique circumstances with which your Lordships’ House is faced. Therefore, with the utmost respect to the noble Lord, the point he makes is of no value.

[Lord Purvis of Tweed (LD)]

I am grateful for the answer. I respectfully believe that my point had value, because if the Government are using precedent and customary law, it is relevant to highlight that it has never been successfully invoked, and it has never been even attempted to be invoked in the way that this Government are doing. Since we are approaching customary international law, it is worth having that on the record.

My specific question was whether the Government’s interpretation of invoking necessity can be permanent, or whether the Advocate-General believes that I am correct with the ICJ stating in clear terms on many occasions that invoking necessity can only be a temporary response of wrongfulness, for grave and imminent individual aspects, but the breach is still there. Or do the Government believe that using necessity can be permanent?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for canvassing that. Again, I accept that it is an important point, as are all those that have been made around your Lordships’ House today.

Not all principles of international law are tested before a court, and acceptance by the international community of a particular practice, or codification by relevant institutions, as in the articles on state responsibility, can provide very significant precedent. Necessity provides a justification for non-performance with specific terms of the protocol, for as long as the circumstances justifying necessity persist. That relates to the temporal point which the noble Lord makes. The relevant circumstances could last for a significant length of time, so it is not necessarily a short-term justification.

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

Whatever happens, we have to re-embrace the discipline of the Good Friday agreement and the subjection of the protocol to that prior treaty, courtesy of Articles 1 and 2 of the protocol, if we are to celebrate 25 years of the Good Friday agreement come April.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend Lady Suttie in her amendments. Notwithstanding the appeal from the noble Lord, Lord Cormack, these Benches do not need to be persuaded of his arguments. We are nevertheless tasked with scrutinising and testing this legislation, and I support my noble friend’s amendments.

I want to ask the Minister just two simple questions relating to the Sewel convention, which is now recognised as a constitutional principle. Michael Ellis, speaking on behalf of the Government in Committee in the Commons, was asked about legislative consent of this Bill. He said:

“As the hon. Member for North Down will be aware, the Sewel convention applies to this Bill, as it does to all Bills of this Parliament that intersect with devolved competence. I confirm that in the absence of functioning institutions, senior officials in the Foreign Office have already made contact with the head of the Northern Ireland civil service regarding legislative consent … The Government will consult stakeholders in Northern Ireland, including Members of the Assembly, on the operation of the Bill during its passage and thereafter”.—[Official Report, Commons, 13/7/22; cols. 385-86.]


What did the officials ask of the civil servants with regard to legislative consent in the absence of there being an Assembly? This is not a practice that has ever been seen anywhere else for the operation of the Sewel Motion. Which Members of the Assembly have been consulted during the passage of this Bill, and on what? Have they been asked, with regard to the dual regulatory regime that the Bill proposes, and what have their responses been so far?

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

--- Later in debate ---

[Lord Caine (Con)]

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

[Lord Purvis of Tweed (LD)]

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

[Lord Caine (Con)]

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

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

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

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

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

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Moved by

[Lord Purvis of Tweed]

7: Clause 4, page 3, line 13, leave out subsection (3)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

I rise to move Amendment 7 and to perhaps add some mascara to this porcine proposal for the satisfaction of the noble Lord, Lord Kerr. I tried to give a preview of the excitement of later groups to retain the attention of the Committee. Alas, we might be on to more of a core group with Clause 4. In many respects, it is the core of the Bill. We have been told by the noble Lord, Lord Frost—who is no longer in his place—that it contains the proposals which will resolve the issues. However, in many respects, the Bill should be called the Northern Ireland delegated powers Bill, because 19 of the 26 clauses are delegated powers clauses and not proposals that we are able to scrutinise properly.

On why imminent peril and the invocation of necessity is so important, it is because it is at the heart of the reasoning why Clause 4 exists. I shall not recap the discussion on the previous group or the first day in Committee, but there is still a lack of clarity about the Government saying that the protocol is the issue but then that it is not the issue, it is its implementation. They have said in their legal paper that the situation of necessity needs to be addressed urgently but also that they have not yet made up their mind on solutions and addressing them will take time. They have said that there is imminent peril, but the Advocate-General told me on the first day in Committee that imminent is as long as the Government might consider it to be, so it is important to try to pin down when the imminent peril started.

I am disappointed that the noble Lord, Lord Frost, is not able to stay for other groups in Committee because I wanted to respond to what he said. If this Bill is a negotiating tactic, he has completely undermined the Government’s argument for invoking the doctrine of necessity for this Bill, because it cannot be both. It cannot be a way of addressing grave and imminent peril and also be a negotiating tactic with the EU. I heard said from a sedentary position, I think by the noble Lord, Lord Lilley, “Why not?” If the whole reason of grave and imminent peril for the invocation of international law is to set aside treaty commitments but there are negotiations under way to resolve them, you cannot invoke the doctrine of necessity because the doctrine of necessity under Article 25 of the International Law Commission can be invoked only if there are no other means of resolving the issues, so it simply cannot be both.

I am trying to pin down when this peril actually started and how we are to consider what the baselines are. The noble Lord, Lord True, told the Chamber in January 2021 that concerns about the implementation of the protocol must not be overstated. He said:

“I acknowledge that there have been issues—that was never denied—but, overall, goods are continuing to flow effectively. Supermarkets are able to move their lorries into Northern Ireland. There are some specific issues, as we have seen with individual suppliers, but it is holding up well overall.”—[Official Report, 14/1/21; col. 884.]


A week later, his then Secretary of State Brandon Lewis told BBC “Question Time” viewers—I quote from the transcript of the programme: “The protocol means that as part of the United Kingdom Northern Ireland is going to have this unique competitive advantage in the world, in the sense that Northern Ireland has the ability to trade in and as part of the United Kingdom as well as through the single market with the EU. That is going to mean if you are a business that deals with the UK and a business that deals with the EU, the place to invest and grow your business is in Northern Ireland. You have got that ability to trade both ways and I think that gives Northern Ireland a competitive advantage and a huge opportunity.”

Therefore, the Government rest their case on grave and imminent peril somewhere between January 2021 and the publication of the White Paper. During that period, I asked repeatedly for information on UK-EU trade, and we were also asking questions about east-west trade between GB and Northern Ireland. Ministers stated to me in response that it was impossible to disaggregate factors such as Covid and then the global supply chain. They have found ways to do for this for GB-NI trade, but it is hard to discern from official government statistics produced by the Northern Ireland statistics body, and the Department for Transport’s data for UK major ports have not shown major shifts. So I would be grateful if the Government would publish this information directly. They have indicated that trade diversion exists, but they have not published statistics showing their case. I am very willing to look at them if they have published them, but they have not yet done so. Therefore, we need to have more information as they are seeking powers to put forward a dual regulatory system of both UK and EU procedures.

I appreciate the comments that were made on the first day in Committee by the noble Lord, Lord Dodds, and others that the protocol has not been implemented in full yet, and I understand that, but neither has the TCA for any UK port of exit and entry for goods into the UK. We are on our third delay for Dover and all other ports, and they are not fully operational. For trade between the UK and the EU, there is not a single fully operational port under the measures of the TCA in any of the four nations.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I thank the Minister for his response. We will get to SPS issues later, as well as some of the customs elements that the noble Lord, Lord Dodds, highlighted.

I thank the Minister for his information from HMRC, which I of course read before this debate—it is static information for one calendar year. One of the frequently asked questions under that data is:

“Does HMRC hold data on NI movements from GB before January 2021?”


The answer is:

“No, the collection of data for goods moving into NI from GB has only been required since 1st January 2021”.


The Minister then added anecdotal evidence, which the noble Lord, Lord True, told us that we should not use. Both things cannot equate: a static set of data for one calendar year does not necessarily demonstrate the implementation of the protocol, especially since the trader scheme would have operated under many of these declarations anyway—but we will no doubt pursue some of these matters later on.

I accept that the Minister is open with the offer of a briefing, but it is the draft regulations that we need to see; it is not briefing on what the theoretical operation of a dual regulatory system might be. We need to see the regulations that would operate that. In the previous group and on the first day in Committee, we heard that the Government have practical solutions, and the Minister has referred to them. But, as the junior to the noble and learned Lord, Lord Judge, indicated, an unprecedented breadth of regulating powers will be provided to Ministers. The noble Earl, Lord Kinnoull, was absolutely right: part of the unprecedented nature that is so egregious is that these will effectively be treaty amendments, and we have the well-established CRaG process for scrutinising and effectively approving treaty amendments.

Finally, the reason why all this is important—it addresses one element of the point from the noble Lord, Lord Lilley—is that the Government accept that they are breaching their commitments and that these are wrongful acts. The Minister shakes his head, but they have.

[Lord Ahmad of Wimbledon (Con)]

I am not clear on the noble Lord’s point. What have the Government accepted?

[Lord Purvis of Tweed (LD)]

The Government have admitted that these are breaches of the obligations under the protocol because they have invoked the defence of necessity for wrongful acts. You cannot invoke a defence for a wrongful act if you do not believe that you have committed a wrongful act.

[Lord Ahmad of Wimbledon (Con)]

But if the original instrument is not working in the first place, which it is not—

[Lord Purvis of Tweed (LD)]

Oh!

[Lord Ahmad of Wimbledon (Con)]

It is all very well to be critical. I accept the points that have been made about Article 16, but let us not open up that debate again. What specifically is the noble Lord’s proposal?

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[Lord Purvis of Tweed (LD)]

Let us have an extra set of processes if we are now scrutinising alternative proposals. We are holding the Government to account here and trying to scrutinise the information. When we see the draft regulations, I will of course be able to give some thoughts about them—but how on earth can I respond to something that I have not seen? That is what the Government are asking for and why the DPRRC believes that these powers are not appropriate for primary legislation, and I agree.

On the defence of necessity for a wrongful act, the FCDO’s delegated powers memorandum admits that it is breaching its commitments, so this is not me making an assertion. I am sure that the Advocate-General will intervene on me if that is incorrect. I am just referencing the delegated powers memorandum. Even if this is a defence of committing a wrongful act, invoking the International Law Commission’s Article 25 on wrongful acts—and if the noble Lord, Lord Lilley, is correct that there are now competing treaty obligations—Article 13 of the protocol allows any other treaty mechanism under the TCA or the withdrawal Act to supersede the protocol. So, if the treaty is competing with other obligations, and if the Government accept the case of the noble Lord, Lord Lilley—which they have not—we have put mechanisms into statute to trigger the superseding of the protocol if we wanted to open up new negotiations under the existing treaty. The Government have not signalled that they are willing to do that, so the noble Lord’s case is not particularly strong, even if the Government do not accept it.

In the later groups, we will no doubt return to some of these aspects and points of principle in detail but, in the meantime, I beg leave to withdraw Amendment 7.

Amendment 7 withdrawn.

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Moved by

[Lord Purvis of Tweed]

9: Clause 5, page 4, line 14, leave out subsection (1)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

My Lords, I shall speak also to Clauses 5 and 6 standing part. There is consistency in some of the arguments to some extent, so this will not necessarily need to be as long.

As the DPRRC indicated, the Government have not yet formed their policy on the precise elements that they are seeking powers for. The DPRRC indicated and highlighted—I agree with it—that we should not legislate when government has not yet formulated its policy. Let us be clear that the Government’s memorandum states that the powers that they seek under these clauses could make criminal offences by negative instrument. Can the Minister confirm that in his response? We should not make new criminal offences by negative instrument.

The Government also state that they need these powers but should not present them through primary legislation. This includes certain areas of new powers for HMRC and other agencies. In primary legislation—in the Trade Act and elsewhere—proper procedures for dating sharing on customs arrangements within the UK have been brought forward. The Government felt that primary legislation was necessary for that, but, under this Bill, they say that they do not believe that primary legislation is the correct approach for it. This is simply not consistent.

I am interested to know what the Government consider to be the interactions with the Taxation (Cross-border Trade) Act 2018. The regulation-making powers under this legislation, providing more powers for HMRC legislative competence, were not provided for Northern Ireland under that Act. I am not sure what has changed. The interactions between Sections 30A, 30B and 30C of that Act are not clear.

Secondly, we can perhaps explore what the Government seek to do on the use of delegated powers to make new law in an area where we have made an international agreement—as we heard, they have not provided illustration for it. The Government’s response to the European Union’s proposals in October 2021 has not been entirely clear either. I am not sure whether they supported its proposals for having just one certificate per consignment of food products, rather than per product—presumably, that would have a major impact on the HMRC statistics and declarations that the Minister referred to. The European Union indicated that that would remove 80% of checks on products of animal origin, or new procedures for prepared meats, such as sausages, import of which into the EU is generally prohibited. So I am not sure what impact assessment was carried out for the EU proposals, had they been fully adopted.

As the noble Lord, Lord Dodds, said, the Ministers took credit for the Trader Support Service, but they now seem to suggest that it has failed. Why? What has been the impact of the Trader Support Service? As I understand, it raises all the documentation and it states that it has been successful. It is on a lucrative contract from Fujitsu Services Ltd, which is at the centre of the Post Office scandal, so what is the Minister’s view about how Fujitsu has carried out its contract? Fundamentally, legislating first before introducing proposals should not be done, and trying to say that legislating for areas where agreement can be made will not be sustainable elsewhere.

I close by thinking that there must be a prize somewhere for government irony. As we know, the delegated powers memorandum on Clause 6 states that it is a breach of an “international obligation”. Paragraph 56 says that

“regulatory procedures … can be updated to ensure compliance with, or give effect to, any international obligation or arrangement to which the United Kingdom is a party.”

That is quite welcome. However, it is a shame that these powers are removing those obligations and are providing such unprecedented breadth to the regulation-making powers for Ministers. The case has not been made; therefore I beg to move.

[Baroness Chapman of Darlington (Lab)]

I will speak briefly to Amendments 10 and 11, which we have tabled because, like the noble Lord, Lord Purvis, we too wanted to highlight concerns about these issues. As I am sure noble Lords can see, in the current Bill, delegated powers are to be used when Ministers consider it “appropriate”; we would change this to “necessary”. Prior to tabling these amendments, we have signalled our general concerns about delegated powers fairly consistently throughout the process of leaving the EU, since the EU withdrawal Bill in 2018. It is disappointing Ministers’ fondness for this technique seems to have grown; we now see it frequently in things that are quite wide-ranging. I was recently involved with the Schools Bill, which was riddled with these powers because, frankly, the Government did not know what they wanted to do on a wide policy area, so inserted a bunch of Henry VIII powers to give themselves the flexibility to backfill their argument later and decide what they wanted to do once the Bill had passed. Obviously, there was a huge row about that and the Schools Bill is no more, so we can only hope that lessons were learned.

We have been raising concerns again and again about how the Government are just relying on delegated powers, but for some reason the scope of the powers in EU-related Bills seems incredibly wide and we are starting to tease out, with the Minister, some of their intentions. However, an intention stated at the Dispatch Box—or something indicated in other government documents—is not sufficient when we are talking about these sorts of issues. What we really want is clarity and the ability to scrutinise and have those discussions on the Floor of this House, but the way the Government are going about this denies us this opportunity. One of our main concerns is the Government deciding to use skeleton Bills in the way they are.

These are quite general concerns. As we have heard, there are much bigger concerns about the Bill and we have covered some in our debates today and last week. We fully understand the concerns raised about Clauses 5 and 6, which enable the creation of new customs arrangements without primary legislation. The noble Lord, Lord Purvis, did a very effective job of going into those in some detail, which I do not feel I need to repeat. This is quite a precedent to set and we feel deeply uncomfortable about delegating these kinds of powers to the Treasury and its agencies. In the past—I mentioned the Schools Bill, but there have been other examples—the Government have backed off, removed some of these powers from legislation and changed tack by putting in place genuine checks on their use. In all honesty, I do not think that particularly helps us with this Bill because, as many have said, a whole face of make-up could be applied to this Bill but it really would not help.

That said, it is important that we, as a House, put down a marker and make our view known to the Government on this issue of delegated powers, because this is quite an extreme example in the Bill. Perhaps when some more stability is available to Ministers, this might be something we start to see less of, because the government agenda would become clearer. I must say—noble Lords can hold me to this—that should my party win power in the coming months or years, I hope that this is not an approach that we would seek to take. I am very well aware that this is on the record and will be quoted back to me. Such is our concern about the overuse of these powers that I am very happy to be held to my words.

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[Lord Ahmad of Wimbledon (Con)]

As I have alluded to, it is a question of where that bar is set. The Government are, in this instance, looking for that extra level of flexibility for the Minister concerned to be able to make that appropriate act. I accept what the noble Baroness is saying regarding her amendment. Certainly, I am sure that there will be some practical examples and insights that we will exchange on what can be met by those particular tests.

Clause 5 ensures that a Minister of the Crown also has the power to make regulations in relation to the movement of goods to which Clause 4 relates—[Interruption.]—my apologies: that is my phone. This is what happens when you have a 10 year-old and an eight year-old at home—they may be providing me with an answer to the question from the noble Baroness, Lady Chapman.

Specifically, the clause provides for the creation of secondary legislation, which will enable Ministers to define how the green and red lanes work in practice. Regulations made under this power may, in particular, provide for the application of any checks and controls before or after a movement of goods on UK or non-EU destined goods moving into Northern Ireland in order to ensure that appropriate processes are in place to manage, for example, biosecurity risks. Such powers may also be used to ensure that goods that are heading to the EU comply with relevant regulatory processes, such as sanitary and phytosanitary controls. Much of this is operationally focused or deals with the processes to be applied by the relevant government departments. We believe that this clause is essential to enable the appropriate Minister to have the flexibility to deliver the UK’s proposals for this new regime for the movement of goods.

I turn briefly to Clause 6. Again, the noble Baroness, Lady Chapman, alluded to the issue of the Treasury and HMRC having the power to make regulations in relation to the movement of goods for customs matters. Alongside Clause 5, this will enable the delivery of new green-lane arrangements, which remove unnecessary costs and paperwork for businesses trading within the UK. We heard in the previous debate from the noble Lord, Lord Dodds, on challenges being faced by businesses.

Specifically, the clause provides for the creation of secondary legislation to administer the green lane through appropriate checks, controls and administrative processes for goods that would otherwise be subject to EU customs rules. It is the Government’s view that this clause is absolutely essential to enable a Minister of the Crown to have the flexibility to deliver the UK’s proposals for the green and red lane arrangements. Taking power to provide for the regime is required and the precise detail of the regime will be properly subject to consultation with stakeholders. I therefore recommend that this clause stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Minister for his reply—he can tell his kids that we are also doing trick or treat here, although I am not sure what the balance is between the tricks and the treats. I am grateful for his response and for the support of the noble Baroness, Lady Chapman, and the noble and learned Lord, Lord Judge, who is of course here in spirit if not in person.

I strongly agree with the noble Baroness. On a sensitive issue such as this, the powers that Ministers have should be absolutely necessary in order to deliver what they have said they want to deliver. They should not be any broader than that. But the Government have not formulated their policy yet, which is at the heart of the frustration. We are being asked to legislate to give powers to Ministers, but they have not said what they then want to implement. They have not indicated what the interaction with the Taxation (Cross-border Trade) Act will be or why HMRC will be given statutory powers which that Act does not provide it with. I do not believe that we should be in a position where we give in primary legislation the “level of flexibility”—as the Minister said—to Ministers when they have not explained to us what they want to do.

I do not think that the Minister has persuaded me at this stage. I welcome the noble Baroness’s commitment that, if her party wins power, they will not bring forward proposals such as this; on behalf of these Benches, I can give the same commitment that when we achieve power, we will not bring proposals such as this either. In the meantime, before Report or we achieve power, whichever comes sooner, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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Debate on whether Clause 7 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the patience of the Committee on this trio of groups. Clauses 7 to 10 are at the real heart of the proposals, which links to the comments from the noble Baroness, Lady Ritchie, before about trying to understand how the Government will really manage the situation that they want to put in place with the dual regulatory regime.

The dual regulatory regime may be fairly neutral, but it of course means that Northern Ireland will be perpetually part of the EU single market. Clause 7 suggests that a trader can choose to operate under the EU law system or under a UK system, as the Minister referred to on an earlier group. That EU law system would be under separation agreement law.

My first question is genuinely a probing question: there may be a good reason for it, but what impact will the Retained EU Law (Revocation and Reform) Bill have on the implementation of EU regulations in this regard? I do not know what effect the mechanism for updating, as proposed under that Bill, will have on separation agreement law under this Bill. Do we have to legislate for any changes when it comes to the EU changing its regulatory approach?

Is this going to be a dynamic system where we will automatically update domestic statute if the EU changes its approach? If it does, then we are back to square one from our colleagues from the Democratic Unionist Party, who have been railing against that, but we will in effect be in a worse position because this is automatic updating of domestic legislation for another set of statutes from another power, which none of us will have any say over. I find this hard to believe and would be grateful if the Minister were able to say that this is not going to be the case.

The questions now relate to the green and red channels—the dual regulatory system. I would like to know from the Minister: who will operate them? The Delegated Powers and Regulatory Reform Committee says in paragraph 42 in reference to Clause 9:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on. And yet Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa. Nor is it remotely credible to say that it is not possible for these matters to be put on the face of the Bill. Why should the Bill say so little, with so much left to regulations?”


Perhaps we can get clarity for business on the dual system. The Government say that businesses will be able to choose. I would be grateful to know how. Will they have to fill in a declaration? What default system will be in place if they ship products without a declaration? Will they be prohibited from shipping to Northern Ireland if they have not declared what their route is? How will they know what status their GB or EORI classification gives them? We have been led to believe that if they operate under the Trader Support Service with an EORI classification, this process is already streamlined. Will there be a Trader Support Service for both the separate routes now?

The noble Lord, Lord Dodds, asked a valid question: for how long will this scheme operate? If the Government felt it was necessary that there was a Trader Support Service for a scheme which operated under EU procedures and regulations, and they are proposing that they will still be operating under EU regulations—under the dual regulatory system—so will a Trader Support System operate permanently? At what stage does a business choose? Is it for each consignment, or will the business have to choose at what stage of production it opts for each of the routes? What if it wants to use a UK route but also needs an EU conformity assessment? Will there be a public register of who is operating, and how will it be monitored? Who will have access to the data, and is this going to be a public mechanism for which routes certain enterprises choose to operate? The latter questions are vital, I think, because it has to be known, as it may well be challenged under a legal system, and what will that legal system be?

Clause 10(1)(d) relates to the use and import of goods. Is the choice for the seller or for the purchaser? This is fundamental if it is to do with east-west trade, so can a purchaser from Northern Ireland determine that their supplier uses the UK route, or is it the supplier who says, “I am very sorry but I have opted for the EU route, so this the situation that is going to have to be received, and the good that goes into the market has to have the EU mark on it”? I do not know, so I would be grateful for clarity.

Michael Ellis, the Paymaster-General, told the Committee in the Commons that the choice of using a route is completely voluntary, but Clause 11 means that it could be compulsory. Why? Which is it? Is it voluntary for businesses, or could it be voluntary until a Minister says it is compulsory? I think this is a breeding ground for utter confusion: an entire system being established at the outset, only for there to be a broad regulation-making power, which could be put in place without consultation—there is nothing in the Bill that states there will be consultation—to say, “All of your choices that you have been making for this, we have now said that you have to use this particular route.”

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, having listened to the debate thus far, I have again noticed that a number of noble Lords seem to be exercised about the DUP’s well-known opposition to the protocol. To be clear, not one unionist or unionist party in Northern Ireland accepts the protocol. Rather than just mentioning the DUP, I ask noble Lords collectively not to obsess over the party and realise that there is a serious problem to be dealt with. Clearly, we have an impasse at present, and until the Northern Ireland protocol is dealt with, we will not move forward into an Assembly. That must be restated.

In this group we are confronted with the proposal that Clause 7 should not stand part of the Bill. The clause deals with the option of dual regulatory routes, which arises from the Bill creating a regulatory route that does not involve complying with the protocol. Thus, those proposing the removal of Clause 7 once again engage their argument that the doctrine of necessity cannot be applied and thus excuse us from complying with the protocol. In that context, they maintain Clause 7 should not stand part of the Bill.

Once again, it seems to me that arguing for necessity and a special dispensation not to obey international law is not the best way of addressing the protocol problem. In making this case, I will pick up on the assertion made by some noble Lords that this Bill is problematic not only because no commitment was made to it in the 2019 Conservative manifesto but because the manifesto suggested that the Conservative Party was committed to the protocol. It seems to me that one can assert on this basis that it would be wrong for the Government to bring forward a Bill such as this only if we pretend that Articles 1 and 2 of the protocol are not part of it.

Not only do Articles 1 and 2 subject the protocol to the Belfast agreement treaty, but Article 30 of the Vienna Convention on the Law of Treaties makes it plain that, in the event of any conflict, the Belfast agreement should prevail. This clearly implies that if the operation of the protocol undermines the Belfast agreement, action must be taken. This is more than implied in Article 2, which actively places as a matter of international law an obligation on the UK Government to ensure that the operation of the protocol does not diminish the rights set out in the section of the Belfast agreement

“entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.

As other noble Lords have pointed out, the operation of the protocol is dramatically diminishing the right in the relevant section of the agreement to

“pursue democratically national and political aspirations”.

This right can no longer be pursued in relation to 300 areas of law that have now been removed from a legislature that includes legislators elected by Northern Ireland and placed in a legislature where Northern Ireland has no legislators. This means that, rather than international law being the enemy of this Bill, it is its friend, because the Government are subject to an obligation in international law—Article 2 of the protocol—to take action to ensure there is no diminishment of the right to

“pursue democratically national and political aspirations”.

There is an additional international legal imperative in this regard which should not be overlooked. It arises from Article 3 of the protocol of the European Convention on Human Rights and the case law arising from the case of Matthews v United Kingdom. Matthews lived in Gibraltar and was subject to legislation made by the European Union. As in the case of Northern Ireland, this legislation was made by the European Parliament, in which Gibraltar had no representation. Paragraph 64 of the judgment of the European Court of Human Rights in the case concluded:

“In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it … In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied. It follows that there has been a violation of that provision.”


This case is of seminal importance, because it established that it is not lawful for any jurisdiction to be subject to legislation made by the European Union when the citizens of the said jurisdiction are not given the opportunity to elect their own representatives to the EU institutions to make that law. The Matthews judgment rings out loud and clear across Northern Ireland. The legislation imposed on Northern Ireland, courtesy of parts of the protocol, denies the very essence of the right to vote, as guaranteed by Article 3 of the protocol of the European Convention on Human Rights.

[Lord Purvis of Tweed (LD)]

My Lords, I thank the noble Lord, Lord McCrea, for giving way. I am following his argument very closely. I do not understand why that argument will not apply to the red route under a dual system. The dual system, by definition, will include the EU route, which will automatically apply EU rules for trade with Northern Ireland, which will still apply to all the areas that he said will have no say.

--- Later in debate ---

I therefore recommend that these clauses, which are essential to delivering the Government’s objectives and dealing with key issues in the protocol, stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for both the Minister’s full response and his offer to write when he has reviewed some of our questions. I still have questions over what “classes of goods” means and some of the issues that he raised.

I am grateful for the illustration of conformity assessment. It is one of those areas that sounds so technical and boring when you debate it. It is technical and boring, but every good will have to have it in every shop for every consumer. This means that, separate to the protocol, a manufactured good for a consumer in Northern Ireland, such as a toy, will have to have a CE mark on it if it has used an EU conformity assessment body, of which there are a number in GB. However, if it has used a UK-based body, of which there are none uniquely in the UK at the moment, it will have to have a UKNI mark and a CE mark on it. There is no option. So, uniquely in the four nations, consumers and importers in Northern Ireland will have to check that their goods have either a CE mark or a CE/UKNI mark on them. They will not have a UKCA mark on them; it will be different.

This goes back to the sincere points made by the noble Lord, Lord McCrea, about how to have a situation where there is no difference between Scotland, where I live, Northern Ireland, England and Wales. The reality of this Bill and this Government’s choices on the marking of goods and where they will be checked is that things will still be different, with different procedures and processes. When it comes to using an EU conformity assessment accreditation body, we have no say over its rules and regulations and what it says. This Bill is not going to resolve that but I am grateful for the Minister’s response.

I am going to call these the Rumsfeld clauses because what we are being asked to put in place in statute are regulation-making powers for the known unknowns. However, in Clause 9 we also want powers for the unknown unknowns. We do not know whether they are going to work so, under Clause 9, we want the powers to be broad enough for us to have the power to make them work if they do not work. I do not think that Rumsfeld powers are something that our Parliament should operate with; the case has therefore not been made.

I look forward to the Minister’s letter and further clarifications, of course—I therefore reserve judgment—but, in the meantime, I beg leave to withdraw.

Clause 7 agreed.

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

[Lord Purvis of Tweed (LD)]

My Lords, I want to rise very briefly in support of these amendments and also to say that my noble friend Lady Ludford made an extremely clear and very good case. I just want to add three very brief points.

The first is that I refer the noble Lord, Lord Dodds, to Hansard in 2019 and my contributions, among others from these Benches. We debated these issues and highlighted them, and he knows that. I am sure this evening it is just rhetoric in our Committee. He knows we have raised the concerns that he just outlined now. They are why we opposed it. So I do not think he can present that fact towards these Benches.

The second is that in my view Article 2 of the protocol should not be seen in a static form. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights … results from its withdrawal from the Union”.


This is a permanent agreement, a permanent commitment, and therefore it cannot be seen that those that were in place in 2019 are now kept in aspic. So my noble friend is absolutely right that if you are taking away what is case law and when those rights and freedoms protected by Annexe 1 powers are adapted, unless they are dynamic, there is a diminution of those rights, by definition. The Bill proposes retaining them in aspic. The noble Baroness, Lady Ritchie, is absolutely right to highlight the fact that those Article 2 rights need to continue to be dynamic.

I know the hour is late, but I want to remind the noble Lord, Lord Bew, and others of Northern Ireland Protocol Bill: UK Government Legal Position, which is the founding basis upon which this Bill has been brought for our consideration. The final sentence of the penultimate paragraph is:

“The UK urges EU Member States to provide a new negotiating mandate to the Commission, wide enough to change the terms of the Protocol to respond to the full range of issues addressed by this legislation.”


So far, I have not heard a squeak from any Minister saying that the position of the Government is still that there should be a new negotiating mandate from the Commission to EU member states. I have not heard that; I am willing to be intervened on, or, if not, I want to hear from the Minister whether that is still the position. That was the legal position of the Government: that they are seeking a new negotiating mandate from the Commission. It is there in black and white, but I have not heard whether that remains the same. When it comes to putting faith in the negotiations, what is the basis of these negotiations if the Government’s legal position is that there has to be a new mandate and that is not forthcoming?

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[Lord Caine (Con)]

My Lords, as ever, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for her amendments, which have provoked a wide-ranging debate at this late hour. I put on record my acknowledgment of her forthright defence of human rights in Northern Ireland over very many decades.

I note that some of the amendments that have been debated this evening follow on from briefings and comments made by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which are important institutions that were established under the 1998 agreement and were set out in the Northern Ireland Act 1998. They perform a hugely important function, as noble Lords have pointed out, as part of the dedicated mechanism under Article 2 of the protocol. I do not think there is any difference between us on that point.

I therefore reaffirm at the outset that the Government are committed to Article 2 and to ensuring that rights and equality protections continue to be upheld in Northern Ireland. If noble Lords will forgive me, I think I have long enough experience in Northern Ireland itself to understand the importance of those protections. That is why Article 2 is explicitly protected from being made an excluded provision by Clause 15 in the Bill. To be clear, the Government will not do anything to undermine the provisions of Article 2. We believe that the Bill gives us all the powers we need to ensure that we can protect it. The noble Baroness’s amendments therefore seek to address problems that we do not envisage arising from the Bill.

I could go into great detail now but, given the lateness of the hour, I will say that we will continue to look at these issues as we consider plans for secondary legislation under the Bill. We will be particularly mindful of any interactions with Article 2, given the interest of the Committee. In that spirit, I look forward to receiving the detailed questions from the noble Baroness in writing. Of course, I give her an undertaking that we will provide her with very detailed responses, which will be placed in the Library well in advance of Report so that noble Lords have a chance to consider them.

On the noble Baroness’s specific question, Article 2 is not excluded and cannot be. Section 7A of the European Union (Withdrawal) Act 2018 will always apply. None of the provisions that the noble Baroness mentioned ceases to apply to Article 2 under this Bill, including Article 13(3), the arbitration provisions, Article 5 of the withdrawal agreement and Section 7C of the European Union (Withdrawal) Act. As I say, I am happy to put this down in much more detail in writing so that all noble Lords will have a chance to consider the responses.

On the point made by the noble Lord, Lord Purvis of Tweed, regarding the EU negotiating mandate, I am happy to confirm that the Government are still engaging with the EU in talks, and we are clear that movement from the EU is needed that goes beyond its 2020-21 proposals. We need to be able to make changes to the protocol.

To conclude—

[Lord Purvis of Tweed (LD)]

I know that it is late; it is very kind of the Minister to give way. Just so we are crystal clear, that means that we have formally sought EU member states to seek a new mandate from the Commission.

[Lord Caine (Con)]

I am sure that the noble Lord will forgive me if I do not give a running commentary on the negotiations. I have set out the Government’s position, and I do not really want to be drawn beyond it.

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

Moved by

[Lord Purvis of Tweed]

16: Clause 12, page 7, line 10, leave out subsection (3)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

My Lords, in rising to move Amendment 16, I warmly thank the noble and learned Lord, Lord Judge, for supporting this suite of amendments, which raises concerns about the breadth of the order-making powers that Ministers seek to gain from this legislation.

I start by thanking the Minister for his holding letter indicating that he is conferring with the noble Lord, Lord Caine, on responding to the questions raised on Monday. I am grateful for that and the efficiency of his private office.

The information from the Northern Ireland Executive suggests that there are approximately 14 live areas where there are subsidy controls, which operate within Northern Ireland under one element of the protocol. The purpose of my amendment is twofold: first, obviously, to raise the concern about the breadth of the power, which is in breach of international obligations, and about powers that the Government seek without formulating policy first.

Secondly, the purpose is to further probe what the Government intend the position to be with regard to subsidy control for Northern Ireland, and when they came to their conclusions. We are told that the position is grave and imminent—that is the defence of necessity for breaching international obligations. But we spent a lot of time in Committee and on Report on the Subsidy Control Bill. I moved two amendments relating to Northern Ireland, and the noble Lords, Lord Dodds and Lord Empey, and the noble Baroness, Lady Hoey, also raised these issues in Committee. Like others, I asked on a number of occasions what interaction there would be with the protocol and what difficulties operating two systems would cause. The noble Lord, Lord Callanan, reassured me that they would work together.

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I know that more general issues have been raised in this debate and previously, and I am sure they will be raised in our future discussions in Committee. I hope I have provided detail, to the extent I can, on some of the questions, issues and concerns raised. Equally, I give the added assurance, as we have in previous Committee stages, that I shall write to the relevant noble Lords if there is further clarity or detail to be provided.

[Lord Purvis of Tweed (LD)]

My Lords, I am very grateful for the Minister’s response. He knows that I respect him greatly, but he said the current scheme had complexity and uncertainty and, with great respect, I do not think he added simplicity and clarity regarding the successor scheme.

My lack of a social life will bear witness to the fact that I was in for every day of the Committee and Report stages of the Subsidy Control Bill, as I will be for this Bill. I asked about complexities and uncertainties. The Minister replied to me in February:

“To respond to the concern of the noble Lord, Lord Purvis, that state aid rules would continue to apply even if the UK’s negotiating position were accepted, these are specific and limited circumstances. I trust that this will allay the Committee’s concerns on this important issue.”—[Official Report, 2/2/22; col. GC 244.]


The Minister is now saying that those “specific and limited circumstances”, which the Government said would result if they were successful in their negotiations, will be impossible to secure, so they are now seeking sweeping powers. He did not indicate when that policy change happened. It is a major change, and I simply do not know when it happened.

That position is also contradicted. The noble Lord, Lord Dodds, referred to Invest NI. As I did at Second Reading, I will read from the Invest NI website:

“This dual market access position means that Northern Ireland can become a gateway for the sale of goods … This is a unique proposition … These additional benefits”.


Invest NI is using dual market access to promote Northern Ireland. The Government may be right that this is now acting to the disbenefit of Northern Ireland, and we have asked for evidence for this. If they are designing a new scheme, the real risk, as the noble Lord, Lord Kerr, indicated, is that uncertainty will have a major chill effect that will bring about the very things the Government say they are concerned about.

I agree with the noble Baroness, Lady Chapman, that we are asked to legislate for unknown unknowns. On Monday I called these “Rumsfeld clauses”. The Government are seeking powers for known unknowns, but if they get it wrong in the future—which they do not know about—they want powers to deal with it now. The problem is that none of the powers in this Bill, which is replacing the Subsidy Control Act, has any of the restrictions and requirements of the regulating powers of that Act. The breadth of the powers goes way beyond the Subsidy Control Act, which is now proposed to be a single element.

Supposedly, these powers are simply for what Ministers consider appropriate, but I am not sure that a Minister would ever think their actions inappropriate when they bring forward proposals. It is for the law to say what is not appropriate in regulations; that is our job. The noble Lord, Lord Pannick, is absolutely right: it is not about what just Ministers or even necessarily just opponents on the Opposition Benches might use. It might be their successors as Conservative Ministers—we have had a fair few of them—who completely change policy. This is so broad.

A point of substantial importance is that there is a deep inconsistency in the Bill. The Government seem to think that it is acceptable to have a dual regulatory regime for goods but one route for subsidised goods. I have seen no mechanism that might cover a subsidised good. I really do not know whether that situation is clear.

With the greatest respect to the Minister, I do not think the noble Baroness, Lady McIntosh, received a sufficient response to her question. She will make up her own mind about this, of course. Agricultural subsidies are not included in the Subsidy Control Act—we debated this long and hard—and although the Minister said that this will now be covered in the proposals, I do not know where. The danger is that there is now an enormous black hole in the provision of agricultural subsidies. Given the agricultural support scheme announced earlier this year, I do not think it fair to have these concerns.

I do not think the Minister has satisfied the Committee. I hope that he and his officials will reflect on Hansard and provide more of the information we want to see. Unless the Government’s proposals are made much clearer, significant doubt will remain. In the meantime, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

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Moved by

[Lord Purvis of Tweed]

20: Clause 13, page 7, line 27, leave out subsection (4)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed]

My Lords, Amendment 20 is, in many ways, connected and therefore I need not be as long about this

Let me quote from the Delegated Powers and Regulatory Reform Committee on Clause 13:

“Parliament has no knowledge of the Government’s plans but is meanwhile expected to rubber stamp all the regulation-making arrangements.”


That surely is not a means by which we make good legislation. The committee is highlighting Clause 13(1), which states that

“Any provision of … the EU withdrawal agreement, is excluded provision so far as it confers jurisdiction on the European Court in relation to … the EU withdrawal agreement”.


As highlighted by the DPRRC and others, it is a stretch to say that the invocation of the defence of necessity would permit the extending to all parts of the exclusion of the European court. I should be grateful if the Minister could state in clear terms why the Government’s legal position, which does not clarify this, states so.

There is a policy concern, which was aired so well by Stephen Farry MP when this was considered in Committee in the Commons. If, as seems to be the Government’s position, there will still be Northern Ireland direct interaction with the EU single market—with north-south trade as a major part of the Northern Ireland economy—without the European court having application, it puts at risk what that genuine market access is for Northern Ireland. He made that point in clear terms and I need not add to it, because the case is very strong. The policy paper The UK’s Solution, when it highlighted the problems, did not suggest the removal of the court altogether either. So is this a red line in the talks for the Government?

Secondly, concern has been raised about human rights consideration. The Northern Ireland Human Rights Commission has highlighted the fact that the breadth of the powers in

“Clause 13 of the Bill would restrict the CJEU’s interpretive role in disputes relevant to Protocol Article 2”.

We discussed on Monday the need for that to be dynamic in relation to the obligations under Article 2, and its potential removal will create concern. I hope that the Minister is able to be clear, in response to the Northern Ireland Human Rights Commission, that there would be no diminution of rights.

Given that the Government have not made the case, and given the concerns about the impact on the operation of the single market and Northern Ireland’s position within that, as well as the human rights concern, I beg to move.

[Lord Judge (CB)]

My Lords, I shall not repeat myself, but I shall draw attention to the fact that, in the debate on the previous group, the Minister kept telling us that the word “appropriate” had been used in circumstances like these, as if that was something to be greeted with joy. Each of those pieces of legislation was a dreadful abdication by Parliament of its responsibilities. Even if the Minister is right—I am not challenging his veracity or judgment; let us assume he is right—that so far none of them has caused any problems, it would be nice to know that and I take it from the Minister that none has, but that does not mean that they may not cause huge problems in the future, or that when we have a change of Government, which we may have, that will not cause problems when their Ministers decide that they are going to apply these regulations. I really find that argument “It has been done before; therefore it is a precedent”—and I am a lawyer—but I do not think all precedents are wise and that one is a particularly unwise one.

I know I am trespassing back on to the previous debate, but I have another concern. During his reply, the Minister offered a number of reasons why this regulatory-making power was needed. Fine, but why are they not then put in the legislation, so that we can have a look at what these regulatory powers, at any rate at the moment, are designed to address? For the purposes of this group, if there are matters which the Government have in mind which they think can be served by a regulatory-making power, fine, but let us see what the primary legislation should contain.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank again all noble Lords who have spoken on this issue. I will approach the question on the single market in electricity, and I am grateful to the noble Lord, Lord Hain, for tabling his amendments in this respect. I will start with Amendment 20, in the name of the noble Lord, Lord Tweed of Purvis.

[Lord Purvis of Tweed (LD)]

Lord Purvis of Tweed.

[Lord Ahmad of Wimbledon (Con)]

Did I say “Lord Tweed of Purvis”? It is written in my notes as “Tweed of Purvis”. It is getting late. I am picking up on the noble Lord, Lord Campbell—it is catching. Maybe there is a suggestion in there—I would be the noble Lord, Lord Wimbledon of Ahmad. My apologies to the noble Lord.

The Government have references to the potential use of powers in Clause 13(4), which several noble Lords mentioned. In short, these would ensure an effective assurance and enforcement regime that could give confidence in the protection of the UK and EU markets. This includes fulfilling our ongoing commitment to provide data to, and to co-operate with, the EU, an intrinsic part of the overall model. The noble Lord, Lord Ponsonby, also raised the issue of data sharing and I will come to that in a moment.

The noble Lord, Lord Purvis, rightly raised the protection of Article 2. I assure the noble Lord—I believe I said this on one of the previous Committee days and my noble friend Lord Caine also answered on this—that my noble friend Lady Altmann and I have discussed this, and we have made sure that the response is fully integrated. The UK is committed to ensuring that rights and equality protections continue to be upheld in Northern Ireland, in line with the provisions of Article 2 of the protocol. That is why Article 2, as my noble friend Lord Caine also made clear, is explicitly protected from being made an excluded provision in Clause 15. My noble friend discussed this with and responded to the noble Baroness, Lady Ritchie, and I know from exchanges between the two departments that we will respond in writing to the noble Baroness, as promised. We will share that with noble Lords, placing a copy in the Library. I assure noble Lords that this point is not lost. As I have said, where further clarity can be provided during the passage of the Bill, my colleagues and I will seek to provide it.

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[Lord Ahmad of Wimbledon (Con)]

I do not know if I disappoint or please by saying that there are several more pages in my speaking notes which may address in part what the noble Lord, Lord Hain, said, and this relates also to his amendments on the issue of assessments on non-excluded provisions. To make a general point, whether it is the perspective of the Government in introducing the Bill or the sentiments we have heard from our noble friends, including those within the DUP, and the noble Baroness, Lady Hoey, I think we are all coming at this with the end objective of ensuring that the benefits there have been from the market should be protected. I am quite happy to discuss the specifics with the noble Lord, together with officials, after the debate to see if there is a specific insight we perhaps have not picked up on in respect of these amendments, and how we can have a further discussion in this respect. I fully accept the key principle—I think we all do—regarding the protections that have been afforded and the gains that have been made. Of course, no one wants any lights going off anywhere.

It is the Government’s view that Amendments 21C and 23B, in the name of the noble Lord, Lord Hain, would prevent any regulation being made under the powers in Clauses 13 and 14 before an impact assessment had been carried out with regard to the regulation’s effect on non-excluded provisions of the protocol. Regulations under Clauses 13 and 14 should not be presumed to have any impact on non-excluded provisions of the protocol. They are not excluded and will continue to apply—indeed, they will continue to attract the benefit of the EU law principle of supremacy.

However, if the noble Lord is simply after a more general economic impact assessment—this is where I am saying that a discussion may be helpful—I am not sure that these amendments are required either. Regulations under the specified clauses could be highly technical, with little economic impact. For example, Clause 13(5) specifies that regulations under Clause 13(4) may make provision about arrangements with the EU relating to the operation of the Northern Ireland protocol, including information sharing. As such, the Government could be forced to provide an impact assessment on, for example, a data-sharing system between two competent authorities, which has little or no impact on wider parts of the protocol or economic operators—or, indeed, any impact outside of government at all.

I assure noble Lords that the House will have the opportunity to scrutinise any regulations in the usual fashion, and that the Government will provide all the usual accompanying material under the normal parliamentary procedures, including economic impacts where relevant. However, it is the Government’s view that mandating by statute that impact assessments must be provided for every single regulation under Clauses 13 and 14 would be overburdensome, and it does not tally with the standard principles for impact assessments. To add to the point I made earlier, on the specifics that have not been covered in my concluding remarks, I will write to the noble Lord, Lord Hain. As I said, I believe that there is a common cause to be had here, so if time allows, I am quite happy for us to schedule a discussion on this as well.

Clause 13 outlines the exclusions that seek to redress the feeling that a democratic deficit is created by the arrangements for the implementation and enforcement of the protocol. First, via subsection (1), it provides that any provision of the protocol which confers jurisdiction on the CJEU over the arrangements in Northern Ireland is an excluded provision. This means that CJEU decisions, including infractions, will no longer have effect in domestic law across the entire protocol. Secondly, via subsections (2) and (3), it assists in restoring the Government’s sole oversight of arrangements on the ground in Northern Ireland, providing that the provisions relating to the powers and presence of EU representatives are excluded. Finally, to address the point raised by the noble Lord, Lord Ponsonby, via subsections (4) and (5) it allows for the establishment of replacement arrangements, which provide the ability to put in place new supervisory and data-sharing arrangements with the European Union. This will support assurance processes to protect both the UK and EU markets and facilitate co-operation between UK and EU authorities. That is why we believe that the clause should stand part of the Bill.

Again, I am grateful for the discussions and debate on this group. While I am not suggesting that all noble Lords will have been fully satisfied by my response, I hope that they will be minded not to press their amendments at this time.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the Minister’s response. I reassure him that I am not precious either about my name or my title. My former constituency was Tweeddale, Ettrick and Lauderdale, and I was once introduced to the Massachusetts state assembly by the Speaker as, “Jimmy Purve from Twiddle, Ettick and Louder”. He managed to get every single word wrong, and then he kept asking, “So, where is Twiddle, Jimmy?”

I am grateful to all noble Lords who have taken part in this debate and for the Minister’s remarks on Article 2 rights. The point stressed by the Northern Ireland Human Rights Commission was that the rights are only ongoing rights if they can be both interpretive and dynamic. If you remove the court of justice’s ability to do that, they stop being rights. We are obliged to make sure that they are “ongoing interpretive”, but the power in the Bill puts that at risk. It would be quite straightforward to simply say that that can carry on.

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

Moved by

[Lord Purvis of Tweed]

22: Clause 14, page 8, line 22, leave out subsection (4)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

My Lords, this is a very short group. I will be quick, because to some extent the case has been made—well, the arguments have been presented. I believe that the case has been made; the Advocate-General might consider it not proven, however, for the Scottish reference.

This is another area where it would be helpful if the Government could give some examples of where they seek these very broad powers. The Delegated Powers and Regulatory Reform Committee again has stressed that what is to replace the protocol has not been determined yet because the underlying policy has not been formulated. This is an opportunity to provide some examples and to say why, if there is the defence of necessity, it extends to this clause. I simply do not understand.

If Article 13 of the protocol is to be an excluded provision, it would also be helpful to know the mechanism to supersede it if the Government secure an agreement, or indeed any subsequent agreement, because that is a necessary element within Article 13 that would be removed.

The final point I want to ask concerns Clause 14(3)(a) and (b). I do not know what powers the Government envisage will be necessary to manage the red lane—the EU lane—because that is presumably under EU laws and procedures, and obviously not under a dynamic mechanism. I do not know how the Government envisage the responsibility of managing that process under the EU rules.

My query about paragraph (b) is that I fear that considerable doubt will be raised over how the EU position in the single market will be able to be considered by Northern Ireland Ministers, of whatever Administration. I do not know what the consequences of paragraphs (a) and (b) will be. As I understand the Bill—the noble and learned Lord, Lord Judge, might know if he has had an opportunity to look at this—regulations made under Clause 13(5) could reverse primary legislation that has been removed in Clause 14. We could be in a position where regulations can reverse elements in another clause of the Bill. I think the Government are tripping over themselves.

If the Advocate-General is responding to this, can he give some examples of these areas? That would go some way towards reassuring the Delegated Powers and Regulatory Reform Committee and me. I beg to move.

[Lord Judge (CB)]

I shall not help the noble Lord, Lord Purvis, out, but I will say that the next time we come to this Bill, I think we will find that Clause 22 is the most devastating of all the Henry VIII powers. As to this amendment, I hope the Committee will excuse me if I do not keep repeating what I have said and would go on saying. I thought of giving the Minister a sheet of paper for him to write on, but then I thought I had better take it away as he might keep it and write on it. That is my point.

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[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I thank all noble Lords who have participated in this debate, which was short because, as the noble Lord, Lord Purvis of Tweed, recognised in introducing it, much of the material has been covered before. Noble Lords will, I hope, forgive me if, brevitatis causa, I do not go over all the arguments already deployed and will accept, that, because they have not been deployed, we understand where they apply in the context of this clause, and will bear them in mind when considering our responses.

Amendment 22, in the name of the noble Lord, Lord Purvis, removes the power in Clause 14(4). Clause 14 prevents those necessarily more broad and conceptual provisions from being relied upon, in the different legal context that will prevail under the Bill, to undermine the legal regime that the Government are putting in place for traders. The power in Clause 14(4) is important because it will allow Ministers to ensure, subject to the appropriate parliamentary scrutiny, that the exclusions made under the Bill are coherent. It may, for example, be necessary to make alternative provision where any other provision of the withdrawal agreement or protocol so far as it applies or relates to those exclusions is excluded. It could also be used to provide clarity as to how the horizontal exclusions referred to in Clause 14(1) interact with other exclusions in domestic law.

The noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, sought examples of how it would work out in practice. I ask the Committee to bear in mind that the position in which we are at present is one of anticipation of what will be required in relation to a dynamic situation.

The powers to make secondary legislation allow us to flesh out the precise technical or administrative details of the new regime. The powers also need to be broad to ensure that the Bill can address issues that will arise in future as EU rules continue to change. The Government submit that the powers are both necessary for the legislation to be operable and have been appropriately limited prior to their implementation. As I said earlier, I do hear the criticism in relation to breadth offered by various noble Lords in the debate today and at other stages.

The noble Lord, Lord Browne of Belmont, made points reminding the Committee of the context in which the Government bring forward this legislation, and I am grateful to him for his qualified support. The points he made were no less powerful for having been made before, in the course of various debates we have had at earlier stages.

The noble Baroness, Lady Chapman of Darlington, from the Opposition Front Bench, refers to the way in which more and more laws appear to be being cast in this fashion, with more and more use of delegated powers. I invite the Committee to consider that, in the case of this Bill, the Government are seeking to legislate in such a vital area, as the noble Lord, Lord Browne of Belmont, reminds us.

The noble Baroness speaking from the Opposition Front Bench posed a number of technical questions. The questions she posed perhaps require an answer in more detail than I am able to give from the Dispatch Box, and perhaps than would be desirable to the whole Committee—but, if she will grant me forbearance, I will write to her.

I have not yet addressed the question of Clause 14 standing part of the Bill. It will support the coherent functioning of the Bill. It is important to ensure clarity in relation to the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement to which such provision relates. Subsection (1) gives effect to this by confirming that any provision of the protocol or withdrawal agreement is excluded provision to the extent that it would apply in relation to any other excluded provision. Subsections (2) and (3) set out further the kind of ancillary provision that may be excluded.

I discussed subsection (4) in addressing the amendment proposed by the noble Lord, Lord Purvis of Tweed, but I provide further assurance that the Bill seeks to establish a coherent domestic regime and that regulations can be made under it in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The Government’s position is that the clause is important to insulate fully any excluded provision from being subject to obligations arising from other provisions of the protocol and withdrawal agreement.

I think I am following the mood of the Committee by not expressing myself in as much detail as my noble predecessor, my noble friend Lord Ahmad of Wimbledon —or Wimbledon of Ahmad, as he was prepared to style himself earlier—dealt in, but the Committee as a whole will recognise that this provision is tied up with its predecessor.

I hope that, at least at this stage, I have said enough to persuade noble Lords not to press their amendments.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Advocate-General and I will be brief. I welcome his offer to write to the noble Baroness and those who have taken part in the Committee. The extremely pertinent question that was asked about the Government’s estimate of the number of regulations under the Bill that may be necessary to bring about a new regime is really important, so it would be helpful if the Minister could include it in his response.

I found it very interesting when he said that part of the reason these powers needed to be so extensive was that they needed to be sufficiently flexible for the Government to bring forward regulations when the EU changes its rules. I do not know how that brings about a response to the democratic deficit. Under the dual regulatory regime that will be put in place, we will be in the almost farcical situation that whenever the EU changes any of its rules, Ministers will bring to this Chamber negative instruments that will then be nodded through. There may be a fig leaf because it has the Crown on top of it, but it is not necessarily meaningfully different as far as people having an input.

My final element is perhaps for the correspondent of the noble Lord, Lord Browne. I understand and appreciate the frustration, and perhaps our considerations in Committee are long and tedious, but I have the liberty of putting forward amendments. They may frustrate or bore Ministers, but I am lucky to have that liberty. We cannot do that with statutory instruments, which are unamendable, so we do not have the opportunity to ask questions, tease out, challenge and maybe get concessions or further clarifications. If that is the case for framing an entire new system, that is really problematic.

However, on the basis of the Minister’s welcome commitment to write, in the meantime I beg leave to withdraw.

Amendment 22 withdrawn.

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Moved by

[Lord Purvis of Tweed]

24: Clause 15, page 9, line 1, leave out subsection (2)
Member’s explanatory statement
This amendment would remove the Minister’s power to treat as excluded provision for a permitted purpose any provision of the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement.

[Lord Purvis of Tweed (LD)]

This is a variation on a theme, but this one goes even further—I can be even briefer. The DPRRC reserved its most withering comment for Clause 15. I quote from paragraph 56 of its report:

“Clause 15 contains a power of the sort we rarely see—a power that in essence allows Ministers to rip up and rewrite an Act of Parliament”


and then to retain powers, if any of those new primary legislative functions are, in the Minister’s view, not operating as they should, not to return to Parliament for new primary legislation but to bring forward further regulations. This also completely rips up the entire concept of post-legislative scrutiny, whereby we learn from elements and seek amendments. This is important because, under Article 15(3), three areas of the protocol are not excluded but all the others are, including processes in a joint procedure of dispute resolution, monitoring, evaluation, classification of goods and joint mechanisms designed to be under a process. If it fails, there are mechanisms under Article 16 for safeguarding and rebalancing mechanisms. These are all gone and we do not know what will be in their place.

I understand the arguments presented that anything will be better than what there is at the moment, which is one of the themes. We just cannot be sure, however, because there is nothing in here that offers that reassurance. The breadth of this power, which provides the ability to make primary legislation and then to effect primary legislation again, is really egregious. On that basis, I beg to move.

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[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, I thank all noble Lords for their contributions. I hear what the noble Lord, Lord Hannay, said, and I will take that back to the department. As I have said, where we can, we will certainly seek to update noble Lords on our current engagement, negotiations and discussions with our partners in the EU. From our perspective, the end objective is that the protocol must work for all communities in Northern Ireland, as I have said repeatedly. Clearly, it is not.

I turn specifically and briefly to Amendment 24, in the name of the noble Lord, Lord Purvis of Tweed. I will take this together with Clause 15 as a whole, as he did in introducing this group. This amendment would effectively entirely remove the ability for Clause 15 to operate. From the Government’s perspective, Clause 15 is important to ensure that the Bill is flexible enough to tackle any unintended consequences or future issues that may arise and that threaten the objectives of the Bill, particularly considering the importance of the issues the Bill is intended to address. This means that Ministers can make regulations to adjust how the Bill interacts with the protocol, and to reflect which elements are disapplied.

I fully understand that there is concern about the breadth of the powers under this clause; we have had debates on this, and the noble and learned Lord, Lord Judge, has raised this repeatedly. I reassure noble Lords that the power is limited to a closed list of specified purposes set out in Clause 15(1)—the noble Lord, Lord Ponsonby, alluded to this—for example, to ensure

“the effective flow of trade between Northern Ireland and another part of the United Kingdom”.

We have also applied the stronger standard of necessity to this clause, given its content. This is clearly an area where Ministers should be asked to reach a higher bar and have less discretion, a point we have debated extensively already. Additionally, as has already been discussed—and just to reassure the noble Baroness, Lady Ritchie, on her amendments relating to Article 2—Clause 15(3) provides that this power cannot be used to terminate the “rights of individuals”, the “common travel area” and

“other areas of North-South co-operation”

in the protocol. Of course, these are not the only areas of the protocol left unchanged by the Bill, but they are specifically defined here to provide particular reassurance on these very sensitive matters. I hope noble Lords are therefore reassured that Clause 15 will be used only in the event that it is absolutely necessary to address the Bill’s core objective of preserving political stability in Northern Ireland, an objective that I know all Members of your Lordships’ House share.

I turn briefly to Amendment 32 in the name of the noble Baroness, Lady Chapman of Darlington. We have already talked about the terms “appropriate” and “necessary”, and I put on record that we believe there is an appropriate level of discretion for Ministers in this respect.

I turn to Clause 16, which supports the functioning of the Bill by granting the power to make new arrangements in any cases where it becomes necessary to use the powers contained in Clause 15. This means that new law can be made via regulations, if appropriate to do so, in relation to any element of the protocol or the withdrawal agreement that has been the subject of the powers in Clause 15. This clause can therefore be understood as the equivalent of Clause 15 to the other domain-specific powers provided in other clauses of the Bill.

From the Government’s perspective, it is vital to ensure the functioning of the Bill and to prevent any gaps in the underpinning arrangements. Without it, there is a risk that any new issues arising from protocol provisions would not be properly addressed due to an inability satisfactorily to make replacement arrangements. I therefore recommend that this clause stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the Minister’s response and for those of everyone who has contributed to this short debate. There is a fundamental disagreement of principle with the Government, in that, if they are seeking powers such as this, it should be as a result of agreement. These powers should be powers to implement anything that is agreed.

I say to the noble Lord, Lord Bew, that we should be legislating to implement the results of the negotiations. Legislation should not be tactical: that is not the point of legislation, and it will never be good if it is. Therefore, this is really quite important to bear in mind. If formal mechanisms have been exhausted, we legislate—but only after agreement or exhaustion of it. The noble Lord seems very confident that negotiations are taking place, but I agree with the noble Lord, Lord Hannay: we have not heard the Government say that they are negotiating; they are describing them as “technical talks”. These include the “technical talks” about the application of the protocol. Do noble Lords remember “to fix it, not mix it” and “to mend it, not end it”? They are not my words but Ministers’ words. So negotiations are not taking place; “technical talks” are taking place. Yet Parliament is being asked to give Ministers powers to make primary law under regulations as a result of “technical talks”; that is jarring.

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[Lord Dodds of Duncairn (DUP)]

The 44% who voted to come out was a much higher figure than people had expected—but I accept what the noble Baroness says. But we are part of the United Kingdom and, just as Scotland and London and other parts of England voted in a certain way, we had to respect the overall vote. And if every single person in Northern Ireland had voted to remain—never forget—there would still have been a majority for Brexit and Northern Ireland would still have left the European Union, because we are part of the United Kingdom. The Belfast agreement did not create a hybrid situation in Northern Ireland. The sovereign UK Government are the responsible Government. We are United Kingdom citizens. Special arrangements were made for governance, but not for sovereignty, and that needs always to be borne in mind by those who try to conflate the two things. I think I have said enough on the specific detail.

[Lord Purvis of Tweed (LD)]

Before the noble Lord sits down, I am grateful. I understand his arguments. It is not a question with regards to the result of the referendum. My question is in the context of having scrutinised many trade agreements and treaties, and the deficiencies in the CRaG process. I agree with the noble Lord that there are challenges when it comes to agreements made by the Executive under their prerogative power to negotiate, and then what ability do we have, even quasi-representatives in an unelected Chamber such as this, to raise issues? I get that entirely. But, if the Government secure agreement as a result of these talks, has the noble Lord given any thought to the mechanism for seeking consent for what the Government bring forward?

[Lord Dodds of Duncairn (DUP)]

Well, there are a lot of “ifs” there. If I understand the noble Lord, he is asking, “If there’s an agreement, what should the Government do in terms of getting an endorsement of it?” I presume they would come to both Houses of Parliament and consult with the parties in Northern Ireland. As we learned from the original Brexit negotiations, the Government would be very wise to consult with the parties in Northern Ireland before any final arrangements are entered into.

I have a lot of sympathy with the view expressed by the noble Lord, Lord Hannay, that there is a lot of secrecy around the negotiations. Nobody is quite sure what is going on—technical talks, negotiations or whatever. However, I remember living through one particular week when the UK Government went off to Brussels and then came back again because they had not consulted properly. I would not like to see that happen again, because the whole objective here is to ensure that we can get arrangements which allow the devolved Government to get up and running again, with the support of nationalists and of unionists. So, before we came to any formal vote, I suspect that there would need to be quite considerable discussions and consultations with the parties in Northern Ireland.

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Moved by

[Lord Purvis of Tweed]

26: Clause 15, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) before full consultations have been conducted on any proposed changes with—(a) the Northern Ireland Human Rights Commission,(b) the Equality Commission for Northern Ireland, and(c) the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission,and the Minister has published the outcome of such consultations.”Member’s explanatory statement
This amendment requires a Minister to consult with a number of human rights and equalities bodies before using the powers in subsection (2) of Clause 15 in relation to excluded provision.

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[Lord Purvis of Tweed (LD)]

I rise to move the amendment in the name of my noble friend Baroness Ludford, to which I have also added my name. The brevity of my contribution should not be seen as representing any lack of seriousness in the intent behind them. It really is to seek assurance from the Minister at the Dispatch Box that the regulation-making powers in Clause 15(2) would not be exercised unless there has been consultation with the human rights bodies outlined in Amendment 26, and similarly that regulations will not be put forward under other elements of the Bill without similar consultation of the human rights bodies. I need not make the case as to why that is so important. It is simply a case of seeking reassurance from the Minister that, at the very least, consultation with these bodies will have been carried out before the Government bring forward any orders. On that basis, I beg to move.

[Lord Caine (Con)]

My Lords, I am very grateful to the noble Lord, Lord Purvis of Tweed—as opposed to Twiddle—for being very brief. I think that this is probably the shortest debate by far that we have had throughout this Committee.

I will address the two amendments together, if that pleases the Committee. As the noble Lord set out, these amendments would require Ministers to consult both the Northern Ireland and the Irish human rights and equalities institutions before making regulations under the powers in the Bill. As I set out—I hope fairly clearly—on Monday evening when I was addressing the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick, the UK remains fully committed to ensuring that rights and equality protections continue to be fully upheld in Northern Ireland, in line with the provisions of Article 2 of the protocol. I think that on Monday I referred to the fact that, given my own experience over many years in Northern Ireland, I completely recognise the importance of those human rights protections. I often cite them when I am defending and supporting the Belfast agreement, as one of the key pillars of that agreement. I hope that the noble Lord will accept that assurance.

This is why Article 2 is explicitly protected from being made an excluded provision in Clause 15. The institutions mentioned in Amendments 26 and 47 are, as I have just stressed, important and respected institutions, established by the Belfast agreement and the Northern Ireland Act 1998. They therefore deserve—at the risk of repeating myself—our full and strong support. They undertake important duties and any change to their remit should, of course, not occur arbitrarily.

I will try to assure the noble Lord: the Government do engage regularly with these commissions. I last met the Northern Ireland Human Rights Commission on 8 August. It has powers to provide advice to the Government on issues arising from Article 2 of the protocol, as things stand. Officials have already had meetings with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland regarding a number of these powers. I believe that a further meeting is being scheduled very shortly.

More broadly, the Government have engaged extensively on the issues created by the protocol with stakeholder groups across business and civic society, in Northern Ireland, the rest of the UK and elsewhere, and we continue to do so. This amendment would compel the Government to do what in many cases they already are doing and intend to continue doing. However, the situation in Northern Ireland is pressing. Therefore, it is essential that in certain circumstances powers might need to be used quickly. In normal cases, the Government would of course engage with stakeholder groups in Northern Ireland, but there may be occasions when we have to move very swiftly.

In that context, the requirements set out in the two amendments to engage with the Equality Commission and the Northern Ireland Human Rights Commission before making any changes to how the Bill operates or using any of the powers in the Bill—even though most areas of the protocol do not touch on the commissions’ remit—would be disproportionately burdensome and risk delaying the implementation of solutions for people and businesses in Northern Ireland.

However, I cannot emphasise enough the extent to which the Government are committed to no diminution whatever in human rights protections in Northern Ireland, an integral part of the Belfast agreement. As such, I invite the noble Lord to withdraw the amendment.

[Lord Purvis of Tweed (LD)]

My Lords, I welcome the Minister’s commitment. I hope he sees very clearly that we do not doubt his commitment or his work in this area. The challenge we all have is that there may be a situation where he is no longer the Minister. We hope he will have as long a ministerial life as his noble friend Lord Ahmad of Wimbledon next to him, but that is not guaranteed in this world, so this is about having statutory protections, which we will reflect on. We are considering the question because it does not necessarily delay, nor is it burdensome, to consult human rights organisations before bringing forward amendments.

On the basis of the Minister’s commitment, we will reflect on this. However, in the meantime, I beg leave to withdraw this amendment.

Amendment 26 withdrawn.

Moved by

[Lord Purvis of Tweed]

27: Clause 15, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) before full consultations have been conducted on any proposed changes with—(a) the Northern Ireland Chamber of Commerce and Industry,(b) the Confederation of British Industry Northern Ireland,(c) the Federation of Small Businesses Northern Ireland,(d) Trade NI, and (e) any other persons whom the Minister considers appropriate as representatives of business, trade and economic interests in Northern Ireland,and the Minister has published the outcome of such consultations.”Member’s explanatory statement
This amendment requires a Minister to consult with a number of trade and industry bodies in Northern Ireland before using the powers in subsection (2) of Clause 15 in relation to excluded provision.

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[Lord Purvis of Tweed (LD)]

My Lords, we will build up a fair canter with the next couple of groups because their principles are similar.

Part of the thrust of the argument is that we should be considering how we approach a new regime regarding Northern Ireland as we would for all other parts of the UK. The amendments in this group would do exactly that. They would adopt commitments provided by the Government in other legislation for the implementation of other agreements, including trade agreements, the operation of the single market and consideration of how that market will operate.

For example, Amendment 31 seeks that when the Government wish to operate the framework, they do so informed by the statutory bodies that Parliament has placed in legislation that would operate for all other parts of the UK single market. They should therefore, similarly, consult the Trade and Agriculture Commission, a statutory body tasked with looking at what Governments propose for the operation across the whole United Kingdom, and the Competition and Markets Authority, in relation to the operation of the UK internal market.

These have not been considered burdensome or lacking in timeliness, since these are all provisions in other pieces of legislation. If the thrust of the argument is that there should be consistency in operation for these, surely the Government would want to put in place the consultation of the statutory bodies to inform and advise, on the same statutory basis as in the other pieces of legislation. These amendments should not be too troublesome for the Minister to accept. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, as the noble Lord, Lord Purvis, said, I hope we are speeding up a little. I will speak very briefly to Amendments 27 and 28 in this group, in his name and that of the noble Baroness, Lady Ludford.

In relation to consultation with various organisations —not statutory bodies—such as the chamber of commerce, the CBI, the Federation of Small Businesses, Trade NI, and, as mentioned in Amendment 28, the UFU, Food NI and the Northern Ireland Food and Drink Association, I wonder why those ones were chosen. If you are a member of Hospitality Ulster, you might be feeling a bit left out. If we are putting this in statute, why are certain groups put into statute and others left out?

Also, picking up on concerns raised earlier—I listened very carefully—proposed new subsection (3A)(e) talks about

“any other persons whom the Minister considers appropriate as representatives of business, trade and economic interests”.

The Government could be consulting for a very long time. Is the noble Lord not concerned that that could give a very open-ended power to the Minister, and would maybe provide him with too much discretion? I am very concerned about anything given to Ministers that allows them an open-ended process. Surely that would be of concern. I agree with the necessity of consultation with bodies such as this, and statutory bodies and so on, but I do not think it is necessary to put it in statute.

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[Lord Caine (Con)]

I am extremely grateful again to the noble Lord, Lord Purvis of Tweed, for proceeding at a canter. To some extent, as he said, we are, to borrow a line from “Wish You Were Here”, going over the same old ground—Pink Floyd, for the uninitiated.

I will address the amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord together. Again, I will try to reassure noble Lords that the Government have engaged very broadly on the issues created by the protocol with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. I remind the Committee of something that I think was raised on Monday: over the summer, in addition to routine engagement the Government held 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators.

Within my department, Northern Ireland Office Ministers held discussions with a wide range of businesses and organisations, including a number of those not actually named in the amendments tabled by the noble Lord and his colleague, such as the Dairy Council, Hospitality Ulster, as mentioned by my noble friend Lord Dodds of Duncairn, the Northern Ireland Grain Trade Association, the Northern Ireland Meat Exporters Association and the Northern Ireland Poultry Federation, either individually or as part of the Northern Ireland Business Brexit Working Group. In fact, the noble Lord might or might not be aware that most Northern Ireland food and drink representative bodies—although not one of those listed in his amendment, Food NI—are members of the Northern Ireland Business Brexit Working Group, with which we engage regularly, as are the Federation of Small Businesses in Northern Ireland, the Northern Ireland Retail Consortium, the Northern Ireland Chamber of Commerce and Industry, and the CBI in Northern Ireland.

Alongside this engagement, we have made visits to a number of individual businesses. I reminded the Committee on Monday about a farm I visited between Newry and Armagh during the summer, where senior representatives of the Ulster Farmers Union were indeed present, and where we discussed a number of issues relating to the operation of the Northern Ireland protocol in respect of the dairy sector. So the Government have already been conducting a detailed programme of engagement to inform the specific design of the regime in Northern Ireland that will be created by this Bill, and I give every assurance that we will continue to do so.

The noble Lord’s amendments would compel Ministers to engage in consultation with specific organisations as set out in the amendment, but as I said, there are many others that we are in discussions with that are not mentioned in those amendments. In many cases, the consultations that would be set out in statute would not necessarily be pertinent or proportionate to the regulations themselves and would lead only to further delays in implementing solutions. For example, I think the Committee would agree that the Northern Ireland Food and Drink Association might not necessarily need to be consulted on VAT applied to domestic energy saving materials.

However, the powers in the Bill might need to be used quickly, and while in normal cases the Government would seek to engage with stakeholder groups, there may be occasions on which the urgency of a situation would make that unnecessary and therefore it should not be compulsory. Given the extent of the consultation we are already carrying out with business organisations and others in Northern Ireland, this amendment would risk tying the Government’s hands behind their back.

Regarding the publication of consultations, it is vital that we be able to have free and frank discussions in confidence with as many groups and organisations as possible, in which they can freely express their views to government, sometimes in forthright terms. I am sure the noble Lord would not want them to be constrained in so doing, but the amendment might well inhibit that. Of course, the outcome of our engagement will be considered and reflected in the final regulations, which the House, as has been mentioned in earlier debates, will have an opportunity to consider and scrutinise under the normal procedures. In our view, we do not need a statutory obligation to do something we are already doing with a far larger number of organisations and bodies than the amendment would have us commit to. In that spirit, I ask the noble Lord to withdraw the amendment.

On the government impact assessment set out in Amendment 74, I understand completely and sympathise with the desire for an assessment of the arrangements under the new regime. I will try to reassure noble Lords that while the Bill does not at present have an impact assessment, the full details of any new regime will be set out in regulations alongside and under the Bill, including the economic impact where appropriate. We do not, however, believe it would be appropriate to mandate by statute that the Government must in all circumstances produce an economic impact assessment before the Bill can be brought into full force. Conducting an impact assessment, while important, is not and never has been a statutory bar to making legislation, and for that reason I invite the noble Lord not to move Amendment 74.

[Lord Purvis of Tweed (LD)]

I am grateful for the Minister’s response and I am not entirely surprised by it. I mean no disrespect by that. There is a distinction between engagement—I welcome the engagement that is taking place—in how the Government are informed about the operation of the framework, and the regulations in the two parts: first, to change the exclusion areas, to alter them, to expand them and to diminish them; and, secondly, to bring forward regulations. When we in Parliament are then asked to approve them, our knowing that consultation has been carried out is an important factor when we are scrutinising them.

The second issue is consultation with the Trade and Agriculture Commission and the Competitions and Markets Authority. I will not labour the point, but it is certainly not tying hands behind Ministers’ backs to consult those organisations before bringing forward regulations, because that is a statutory duty in other legislative areas for the functioning of the UK single market. But I hear what the Minister has said, and I understand the engagement. It is reassuring that that engagement will carry on. I will, of course, reflect on the Minister’s comments in more detail, but in the meantime, I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

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Moved by

[Lord Purvis of Tweed]

29: Clause 15, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) before full consultations have been conducted on any proposed changes with the relevant Northern Ireland departments, including the Department for the Economy, and the Minister has published the outcome of such consultations.”Member’s explanatory statement
This amendment requires a Minister to consult with relevant Departments in the Northern Ireland Executive before using the powers in subsection (2) of Clause 15 in relation to excluded provision.

[Lord Purvis of Tweed (LD)]

The amendments in this group are slightly different. It is striking that, of the information provided since the protocol was first agreed and then more recently, the most robust has been from the statistics authority of Northern Ireland and the Northern Ireland Department for the Economy. HMRC, BEIS and others have been catching up in trying to find information about the functioning of the internal market. It is interesting, after all these years, how little data has been captured about the internal market, presumably because we have never really needed to do it. That was exposed, to some extent, when we considered the now enacted United Kingdom Internal Market Bill.

The amendments in this group are similar to the extent of seeking the transparency that the devolved Administration have been formally consulted and asked for reports on the likely impact on the functioning economy of Northern Ireland. The reason we would put forward the argument that this is of value is that, if we are going to be—as the Government intend—operating in a dual regulatory regime, the necessity of having the Northern Ireland Executive and officials within the relevant departments in the Northern Ireland Executive having published information as to what the impact will be of how that will operate, will be very important.

If the Government are sincere that they want to have a sustainable solution to some of these challenges, we need better data. Therefore, the best organisations to provide that data would be the ones listed in these amendments, in partnership with the CMA and the Office for the Internal Market. If the desire of the noble Lord, Lord Dodds, and others is that this is much more rationalised into the internal market processes, the regulatory-making power under this Bill should basically be brought into the operation of the UK Internal Market Act. At the very least, more transparency, openness and involvement of the relevant departments of the Northern Ireland Executive would, I hope, be constructive. These are probing amendments, again seeking reassurance from the Minister at the Dispatch Box. I hope that they are seen in a positive manner. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the continued absence of a formal budget for the coming year is a pressing problem. While there may be a draft budget, departments are unable to plan ahead, and this undermines both consumer and business confidence at the worst time. As-yet unspecified changes to the protocol are a risk to the Northern Ireland economy, which is one of the reasons why we, and many business organisations, would like to see a detailed impact assessment from the Government, alongside indicative regulations. Engaging with those departments in the weeks and months ahead is very important, as they know the Northern Ireland economy far better than any Minister in Whitehall. Can the Minister outline how frequently these discussions are taking place in Northern Ireland? Have the Government shared detailed proposals with their Northern Ireland counterparts? If they have, why should not Parliament see what those plans are as well?

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[Lord Purvis of Tweed (LD)]

My Lords, it is a similar issue. I think we are approaching the same issue from the wrong angle. My point is that, if the Government are putting this forward as their framework, it is important that the framework and the regulations—which will not be just in one go; there may well be a constant churn—are informed in a transparent and public way, as the noble Lord, Lord Ponsonby, said with regard to judging what impact there might be. In order for us to scrutinise them, we should have a view from the Northern Ireland statistical department of what the long-term impact will be. It is not a case of engaging, which is what government should do anyway—and I welcome the clarity with which the Minister is doing it.

No doubt we will return to these issues when it comes to further pressing on what should be in the Bill about the expectations of who is consulted, how, and how we know they have been consulted. In the meantime, I beg leave to withdraw.

Amendment 29 withdrawn.

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Moved by

[Lord Purvis of Tweed]

33: Clause 17, page 9, line 34, leave out subsection (1)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

My Lords, I have a 25-minute speech on VAT and tax, but I might just summarise it for the benefit of the Committee. Again, the Delegated Powers and Regulatory Reform Committee has highlighted an inappropriately wide delegation of power. Here, it is on what would genuinely be an extremely controversial and sensitive issue of tax powers, excise and tax policy. The Government have said it is “not possible” to make such provisions in the Bill. I am just testing why it is not possible to state what a framework would be for provision of taxes, VAT and excise duties.

Everywhere else, what the framework would be is in the Bill—and for good reason. People need to know what the tax powers are and who holds them, and of course it is of controversy that the protocol has these linked elements. So I am simply seeking for the Government to fill in the gaps, state in clear terms why it is not possible and give a bit more information about what they consider to be their proposed framework when they move away from the protocol in these areas. This is the first attempt to get some more information from the Government—because the memorandum was not clear—in order for us to consider it, review it and perhaps return to this issue.

I would be happy for the Minister to write to me on my final point, rather than answer at this stage, because it is genuinely a probing question. Noble Lords may well recall that there had been successful attempts to amend the cross-border trade Act in Section 54, which is the prohibition on the collection of certain taxes or duties on behalf of country or territory without reciprocity. That includes in Section 54(2) that it shall be unlawful for HMRC to account for any duty or customs or VAT or excise duty collected by HMRC to the Government of the country outside the United Kingdom unless reciprocal.

The Government seem to be proposing a breach of Section 54, because the regime that they seem to be proposing is that we would be accounting to the European Union for taxes which we have set ourselves. I am happy to be contradicted about that and similarly happy if the Minister wishes to write on that point. I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, I rise to speak to Amendment 35A in my name on VAT and excise. I do not wish to prolong the debate at this hour. Very briefly, noble Lords will remember back in March when the then Chancellor Rishi Sunak announced measures in the fiscal event—mini-budget, estimate, whatever it was—that there was a zero VAT cut for households installing energy-efficiency measures, which would apply throughout Great Britain, but not to installation in homes in Northern Ireland of materials such as solar panels, insulation or heat pumps.

Consumers in Northern Ireland could not benefit from that VAT cut because of the protocol. Something that was warmly welcomed across the rest of the United Kingdom provoked concern and outrage across the communities in Northern Ireland. Mr Sunak announced that there would be extra money provided by way of Barnett consequentials to make up for it, but, as people with experience of the operation of the Executive know, sometimes the direct tax cut is the most effective and efficient way of getting these things done.

I have tabled this amendment to explore and seek the Government’s reasoning on their approach to the VAT issue. They have not gone down the route that they have in relation to state aid in Clause 12 of excluding Article 10 and annexes 5 and 6 of the protocol. They have not decided to exclude the relevant article of the protocol which applies the VAT rules. Instead, they have adopted the approach of saying there are large areas where we simply disapply that article and we can make provision by regulations in relation to the VAT excise duties and other taxes.

It is more akin to the situation that we find ourselves in with the protocol itself in relation to customs: Northern Ireland is nominally within the UK customs regime, but all the rules of the EU apply. What is the impact of the Government taking this approach in relation to VAT? Why are they not taking the same kind of approach to VAT as they have to state aid? What are the implications? It says clearly in the subsections what steps can be taken in relation to differences in VAT and making sure that the situation that we saw in March may not arise in the future, but what are the implications of not taking out the relevant article in the protocol completely?

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[Lord Ahmad of Wimbledon (Con)]

I think that I have answered that question. I am sure that when the noble Baroness reviews the debate, she will find that I have sought to give a specific reason why the Government have a different approach in this respect. However, if she has further specific questions, I am of course happy to discuss them with her.

In conclusion, as I have said, I have justified Clause 17 to the Committee. In short, it provides Ministers with the ability to ensure that VAT, excise and other relevant policies are aligned across the whole of the UK, including in Northern Ireland. We believe that this clause is imperative in lessening—or indeed eliminating—the unacceptable tax discrepancies that exist between Northern Ireland and Great Britain, and I recommend that it stand part of the Bill.

[Lord Purvis of Tweed (LD)]

I am grateful for both the Minister’s response and the probing questions. In a way, it is a shame that this is the last group of amendments this evening, because we will need to return to this issue due to its significance.

The Minister said that it is the Government’s position that people in one part of the United Kingdom will still be using a foreign power’s tax regime. The Government propose that the difference is that, unlike at the moment, where that is directly enforced under the protocol, they are seeking powers under the Bill for us to bring forward orders to do it. But the net difference is zero. I fear that this will just build up more resentment and more concern, because there will be the expectation of the correspondent of the noble Lord, Lord Browne, that we have power over this now. Instead, as the Minister said, the Government will still be applying EU VAT rules in Northern Ireland for—as some will see it—a very justified reason, because it prevents the need for hard checks on the border with the Republic of Ireland. We are almost back to square one as far as the consideration is concerned, and there is little elucidation for it.

The former Foreign Secretary, Liz Truss, said that the UK should never have to notify another power—that is, the European Commission—on any decision about setting tax. Yet the Minister has said that that is going to carry on, even after the “technical talks” and this legislation. We will be returning to this issue, because what the Minister has said worries me. I hope that at some stage, he might be able to provide the information the noble Baroness, Lady Chapman, requested and clarify what the framework will be, because the democratic deficit could be compounded rather than resolved. In the meantime, however, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Northern Ireland Protocol Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

Moved by

[Lord Purvis of Tweed]

36: Clause 18, page 10, line 9, leave out subsection (1)
Member’s explanatory statement
This amendment would remove the Minister’s power to engage in any conduct in relation to any matter dealt with in the Northern Ireland Protocol, not otherwise authorised by this Act, if the Minister considers it appropriate to do so.

[Lord Purvis of Tweed (LD)]

My Lords, I move Amendment 36. As with previous amendments of a similar character, I am grateful for the support of the noble and learned Lord, Lord Judge.

Clause 18 was neatly described by the former Treasury counsel Sir Jonathan Jones as the “do whatever you like” clause. It was unclear in Committee in the Commons what the Government’s intention behind the clause was. Michael Ellis, the then Paymaster-General, said that the Government needed Clause 18, which is a power to give legal effect to a Minister’s conduct in carrying out their duties. He said:

“It simply makes clear, as would normally be taken for granted, that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation.”—[Official Report, Commons, 20/7/22; col. 1004.]


It is a great relief that we need a Minister to state that. It was quite telling that he said that they needed this power to make their conduct lawful, which would normally be taken for granted.

However, the seriousness is that there has been little explanation on what that “conduct” would be. The Government’s delegated powers memorandum did not explain it. Perhaps that is because they consider this not to be delegated power. The Explanatory Memorandum did, however, give some examples, including issuing guidance. As Michael Ellis indicated, it would also be instructing civil servants. The concern is that we have many other examples where legislation frames the conduct of providing guidance. As the Hansard Society and the Delegated Powers and Regulatory Reform Committee have highlighted, this is one example of disguised legislation. Powers on providing guidance can, in effect, have legal effect. For example, my reading of this clause suggests that it is so broad that it would allow a Minister to issue guidance, which is non-statutory, but also issue instructions that that guidance needs to be followed—which, in effect, is statutory. I would be grateful if the Minister could confirm that that is not within the scope of this clause.

The Hansard Society has sought an exhaustive list of how conduct can be described. If we are to be avoiding hidden legislation, the Government need to be clear in what they seem to do. In the UK Internal Market Act, which has been referred to previously in Committee, I tried to find some equivalent—and there is some equivalent when it comes to the powers of Ministers to provide guidance. However, there are a number of subsections on that power which restrict the Minister’s ability to provide that. Crucially, there is a statutory duty for Ministers to consult with those who would be in receipt of the guidance on the operation of the Act.

Finally, the DPRRC said:

“Despite its being highly unusual and its breadth, the exercise of the power in clause 18 will have no parliamentary oversight since it is subject to no parliamentary procedure.”


Previously in Committee, the noble Lord, Lord Kerr, said that this is not what we do when it comes to breaking international law. This is not how we should be making laws—so broad, and with potentially few restrictions. The Minister simply says that this is about what they do already. If that is the case, why is it necessary? If it is necessary, what they intend to do with it should be spelled out exactly. I beg to move.

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[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Minister for his response and to those who have taken part. I felt that I was agreeing 100% with the contribution by the noble Lord, Lord Kerr, but then I started to have doubts when the noble Lord, Lord Lilley, said he agreed with two-thirds of it. I will come back on that in just a second.

In all seriousness, I am concerned about what the Minister said. If this power, which is not framed and not specific, is guidance for industry then that is now in direct contradiction with the requirement on Ministers to provide guidance on the operation of the internal market, under the internal market Act, for Northern Ireland. Section 48, which I understand is being repealed by this Bill, as we have discussed, has a requirement on Ministers to consult before guidance is published. Under Section 12 of the internal market Act it is a legal duty for Ministers to consult Northern Ireland departments before guidance is issued. Draft guidance must be issued first. To some extent, that is the point that the noble Lord, Lord Empey, made about inclusiveness before measures.

If Clause 18 can be used by Ministers—guidance for industry, as the Minister said twice—that is far weaker than the legal requirements, and I do not understand the interaction between the two. That is a significant problem. I would be grateful if the Minister could write to explain how guidance for industry will be operated under other parts of the legislation whereas they can simply decide to do it under Clause 18 because there are no restrictions, requirements or oversight of that whatever—there is no requirement for anything in draft.

That is important, given the subtext of this serious debate and the fact that—as the noble Baroness, Lady Ritchie, indicated—Vice-President Šefčovič is in London at the moment. The Minister did not state whether any Ministers are meeting the vice-president on his visit. I am happy to be intervened on if wishes to clarify whether, during the vice-president’s visit to London, any senior Ministers are meeting him.

[Lord Ahmad of Wimbledon (Con)]

This was the subject of conversation, but the noble Lord will be aware that my right honourable friend is currently in Sharm el-Sheikh on government business with the COP. We certainly sought to see whether they could meet on this particular occasion, but I will update the noble Lord as and when it happens.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister.

When the noble Lord, Lord Kerr, says that he is miles away from the situation, I have known him long enough to suspect that there is a wee bit of code there. He is probably actually pretty close to knowing what is going on, and I suspect that he is right. I worry, because the Government are not engaging widely, as the noble Lord, Lord Empey, said, or consulting. We have not had sight of what is on the table; we know what the EU has put on the table but not what the UK Government have put on the table. My fear is that, if the Government told us what was on the table, many people would be disappointed that they are only technical talks. Some people want them to be negotiations.

That comes on to the point made by the noble Lord, Lord Lilley. I respect and understand his disagreement with the Government’s position—the Government want to mend it, not end it, and, as I understand it, the noble Lord thinks there is a more substantial issue with that. Ministers have said they want to fix it, not nix it. If you want to mend it, not end it, there are mechanisms, but there are also mechanisms if you want to end it. As Article 13 of the protocol states, it lasts as long as it lasts:

“Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes”—


so, if there is another treaty, this ends. There is nothing special about that; that is every treaty. A treaty lasts for as long as it lasts, and if there is a subsequent treaty then there is a subsequent treaty. So the noble Lord’s beef is not with us; it is presumably with the Government in order to open up the element of the withdrawal agreement and the associated TCA that he thinks are in contradiction.

[Lord Lilley (Con)]

Would the noble Lord deal with the Article 50 point? If it is intrinsically temporary and transitional, can it last for ever?

[Lord Purvis of Tweed (LD)]

That is the point. We have now legislated for it, and the element we have legislated for includes Article 13.8, which is the process by which it would be superseded. I do not think there is any doubt about it; the noble Lord may have doubt in his mind about it, but in the other agreements there are mechanisms if we wish to open them.

The difficulty with this process taking such a long time is that if we were in grave and imminent peril—the Government have invoked the defence of necessity—then we would have anticipated some urgent, high-level talks to have resolved this by now. Regrettably, we are back to a situation where the stakes are getting higher because expectations are higher, but the reality, perhaps, is that some of these talks are technical.

With the greatest respect for the Minister, who I know tried to offer clarification, I am worried about what this power could be used for, and we will need to return to this. In the meantime, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

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[Baroness Chapman of Darlington (Lab)]

My Lords, I will allow a couple of seconds for people who have obviously got it off their chest during the first group to leave, in the hope that we do not go through the whole thing again.

Clause 19 is very short, at only a couple of paragraphs, but it is quite interesting, as it pleasingly addresses the situation we may find ourselves in where the Government have been successful in reaching an agreement with the European Union. Many of us have said, time and again, throughout this Committee, that we hope to see that. We have been challenging Ministers, as we have seen in the previous group, to show visible political leadership. The visibility has been lacking. I take on board what the Minister said about his right honourable friend the Foreign Secretary playing an active role, but visibility and political momentum have been lacking. I like to think that, had one of my right honourable friends been leading these events, we would have seen a far more outward-facing presence, if I can put it that way, through this process—but never mind.

Clause 19 looks at the eventuality of there being an agreement. The amendment I have tabled is one that will be familiar by now to noble Lords who have been taking part in this process from the first day of our considerations. The first line of the clause, as it stands, says that:

“A Minister of the Crown may, by regulations, make such provision as the Minister considers appropriate”.


I have asked that “appropriate” be changed to “necessary”, and I will explain why, in this particular instance, that is sensible.

This clause gives Ministers the power to implement an agreement that they hope to reach with the EU. Obviously—and we accept this—Ministers will need some flexibility in that event, and things may need to be done as a consequence of having an agreement. But I would have thought that an agreement, by its nature, would be clear and specific, and that things would be agreed that are not currently in place that would need to happen. In that instance, surely the things that need to be done by Ministers will, by virtue of the fact that they have just been agreed to with our negotiating partners, meet the test and be necessary.

It troubles me that the Government feel they should have “appropriate” there instead. That seems to give them much greater scope than is ever going to be needed in the event that this clause is used—and we hope that it will be. I would like to know from the Minister what the Government’s thinking is there, beyond thinking that “necessary” is too tight and just wanting to allow themselves a bit more room—of course they do; who would not? But this clause deals with the fact that there may be an agreement, and I do not think it is justified for the power to be as widely drawn as it is.

While I am on my feet, I note that I support the stand part notice from the noble Lord, Lord Purvis, in this case as well. The DPRRC believes that the powers in this clause are just too widely drawn, though there is obviously merit in discussing what powers are needed in the event of an agreement and what the role of Parliament should be in that situation. We think that a deal can be struck—we have said that many times—and also believe that Parliament should have the opportunity to debate any agreement, as other Parliaments will. I just note that the European Union (Future Relationship) Act 2020 was passed in a day and the TCA was ratified without direct parliamentary process. We accept that Ministers need the ability to act in the event of an agreement and we appreciate the Government demonstrating their anticipation of such an agreement in this clause, which is notable, but surely a Bill to enact an agreement would be better. That is what we have been asking for.

This is a discussion we have had with the Government on many occasions and on other agreements, when we have talked about the unsatisfactory process we still have in this country for parliamentary involvement in agreements. We do not think we have got it right yet; that is understandable, and it is perhaps going to take some time to get to that point. We have not had to engage in this for many years, but I do not think that many people in Parliament are satisfied with the way this works at the moment, and it would be helpful if the Minister could acknowledge that.

Without being too cheeky about it, we want to help the Government, given just how unsuccessful they have been so far in settling these issues. We do not see why they would be so resistant to involvement from people who are being very positive and cheering them on in their endeavours. We really do want to see a resolution to this. With that, I beg to move the amendment in my name and express my support for the stand part notice tabled by the noble Lord, Lord Purvis.

[Lord Purvis of Tweed (LD)]

We support the amendment in the name of the noble Baroness. In supporting it, I want to make two points. First, this clause effectively turns the Constitutional Reform and Governance Act principles on their head. We have well-established mechanisms, which are set down in statute, on how we approve new international agreements. If this is a mechanism to replace the Northern Ireland protocol, an internationally made agreement, with a new agreement, then why is the CRaG process, which allows parliamentary scrutiny, debate and, unlike this, an ability to have enhanced approvals or indeed vetoing by Parliament, not going to be the route for it? I do not understand why.

Secondly, it also sets on its head every commitment that has been provided for every trade agreement: namely, that if a trade agreement requires any primary legislation to bring it into effect in domestic law, primary legislation is brought forward—this is not done by regulation. But, again, this is being set on its head. The Trade (Australia and New Zealand) Bill is coming up, which is primary legislation—not regulation —implemented with agreement. The two Bills contradict each other really quite glaringly.

I think that this is significant because of an interaction I had with the noble Lord, Lord Dodds, on one of the previous days in Committee. I asked him whether he had given consideration—if there is, as a result of these talks, an agreement with the EU—as to how that should be put in force. The Government are saying “by regulations”, which are unamendable and could even be under a negative process; they could use Clause 19 to do this. If the noble Lord’s concern—as well as that of the noble Lord, Lord Empey—was about the need for consent, this is not the means by which that would be secured. Yet this is the means by which the Government could enforce it. There is a very jarring comparison between what consent of any new agreement would be and how the Government are seeking powers under Clause 19 to enable them to put this into force. Clause 19 should not be the mechanism by which we have sustainable support for any agreement. An order-making power for a Minister is simply not the route—and that is in addition to the fact that they are turning on their heads long-standing practices by which we put international agreements into domestic legislation. For this reason, I do not think that Clause 19 should stand part of the Bill.

[Baroness Altmann (Con)]

My Lords, I speak briefly to support Clause 19 not standing part of the Bill. Both the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis, have very eloquently explained some of the problems with this clause. Equally, I have a concern about just changing the word “appropriate” to “necessary”, because we had a relevant agreement with the EU—the withdrawal agreement, part of which is the Northern Ireland protocol—and we have passed extensive legislation for that agreement. Yet government Ministers consider both this Bill and this clause “necessary”, even though it may break international law and may tear up the agreement that we have enshrined into our law. So were this clause to stay—and, indeed, were this Bill to become an Act—there would simply be the possibility that a Minister would no longer need to come to Parliament, Parliament would have no say and our whole parliamentary democracy would be turned on its head, as the noble Lord, Lord Purvis, described. I would like to hear from my noble friend the Minister how this is consistent with our normal constitutional safeguards in our democracy.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I am sure the noble Lord will excuse me if I say that I do not have an instant response to that, but I will certainly talk to my officials and, if there are details to provide, I shall of course provide them to the noble Lord.

[Lord Purvis of Tweed (LD)]

There is nothing in Clause 19 on consent. If there is an agreement, what is the Government’s position on securing consent for it?

[Lord Ahmad of Wimbledon (Con)]

My understanding is that we would certainly abide by our previous commitments in that respect. In the interests of clarity, I will confirm that in writing to the noble Lord.

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[Lord Stewart of Dirleton (Con)]

I stress, not for the first time from the Dispatch Box by myself or my noble friends on the Front Bench, that the Government’s preference remains for a negotiated solution.

The Chamber and the other place have heard from representatives of the unionist community that the presence of the European Court of Justice in the protocol is at the heart of the democratic deficit issue. Absent the provisions of Clause 20, we could end up in an incoherent position whereby substantive provisions of the protocol are disapplied but new CJEU case law associated with those provisions continues to apply. For that reason, and the others I have outlined, I urge the noble Baroness to withdraw her amendment. I emphasise that bringing back the democratic institutions in Northern Ireland is the Government’s priority.

The noble Baroness, Lady Ritchie, my noble friend Lord Cormack and others raised the matter of engagement with Northern Ireland politicians. I look to the noble Lord, Lord Empey, as well, on this matter, and the noble Lord, Lord Dodds of Duncairn, touched upon it too in his submission to your Lordships at this stage. This is an important point. The Government have committed to ensuring that representatives of the Northern Ireland Executive are invited to be part of the United Kingdom delegation in meetings of the specialised and joint committees discussing Northern Ireland matters, which are also attended by the Irish Government. Also, when the Northern Ireland Executive was functioning, the then Foreign Secretary regularly met the First Minister and Deputy First Minister of Northern Ireland, along with the Secretary of State for Northern Ireland, to discuss the protocol.

However, to reiterate the principal point, the point which brings this Bill before your Lordships’ House, the institutions are not functioning, and precisely because of the protocol. We will continue to engage, but the protocol has made things that bit more difficult.

[Lord Purvis of Tweed (LD)]

The Advocate-General will have had the opportunity to reflect on a previous day in Committee, when concerns about the single electricity market were raised. A key component is EU law, which is not in question. How does the Advocate-General anticipate that the joint regulatory system operating under our approach and that of the EU can operate if EU law cannot be interpreted?

[Lord Stewart of Dirleton (Con)]

My Lords, interpretation of foreign law is a matter with which all three jurisdictions in the United Kingdom are familiar. With the noble Lord’s leave, because my remit does not extend to the operation of the single electricity market, which, as he said, was touched upon by the noble Lord, Lord Hain, in an earlier group, I will defer to my noble friends on the Front Bench and will write to the noble Lord on that point. I am grateful to him for his forbearance.

I cannot properly address the possibly important proposition raised by the noble Lord, Lord Murphy of Torfaen, in his submission to your Lordships, anent having the Government of Ireland lead the European Union in terms of negotiations. That matter will have been heard by others in the Government and given appropriate significance. It is a novel proposition expressed with the noble Lord’s customary force. I am sure that the Government will look at it.

The noble Lords, Lord Dodds of Duncairn and Lord Empey, gave us the historical background and again laid emphasis which was valuable to us all regarding the importance of the cross-community aspect of the Belfast/Good Friday agreement. As I have said, briefly, the CJEU’s position has been identified as a major obstacle.

Your Lordships’ Committee heard something about the value to be given to polling; I think the noble Baroness, Lady Hoey, raised that as an earlier stage, contrasting polls with actual democratic exercises. However, I can say to the Committee that polling carried out by Queen’s University in Belfast has indicated that with people who have concerns about the operation of the protocol, the CJEU and its presence and status was identified as a significant problem.

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[Lord Stewart of Dirleton (Con)]

With the utmost respect to my noble friend’s question, I do not feel I can go further from the Dispatch Box on what has taken place or what I consider likely to take place in negotiations from this point.

[Lord Purvis of Tweed (LD)]

Will the Minister give way?

[Lord Stewart of Dirleton (Con)]

Before I do, I say that, in response to an earlier point on which I undertook to write, I am notified from the Box that the matter of the single electricity market and the European Court of Justice’s jurisdiction is covered in a letter being sent to the noble Lord today.

[Lord Purvis of Tweed (LD)]

That gives me an opportunity to thank the Minister for his efficiency. I look forward to reading the instant letter that is on its way.

I have a point on Article 2 and the rights associated with it. I seek some reference from the Dispatch Box, because the concern that exists, as I understand it—and I am not a lawyer; that is my declared interest—is that the directives providing the rights under Article 2 are interpretive. Therefore, if there are changes to those founding rights—or updates, interpretations or case law—there needs to be a mechanism by which we will adopt that, otherwise those rights under Article 2 are not being upheld, as I understand it. But if under the Bill the court is prohibited from having that role, what will be the mechanism while we interpret those European directives, which are protected under Article 2?

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[Baroness Butler-Sloss (CB)]

I want to add to the two speeches that have just been given, with every word of which I agree. The Minister may say that we are being hypocritical, as was said earlier, because there have been earlier Bills where we have allowed Henry VIII clauses; but I have been in this House since 2006 and in my time I have never seen a Bill anything like this one, with enhanced Henry VIII powers—or Henry LXIV powers. To my knowledge, in my time we have never had a Bill that has gone so far beyond what one might almost call the “normal” Henry VIII clauses. I entirely agree with what the noble and learned Lord and the noble Lord, Lord Pannick, said. It really is time that the Government stand back and ask, “Is this actually reasonable? What is it that we are trying to do?” It is utterly unacceptable.

[Lord Purvis of Tweed (LD)]

My Lords, it is very hard to follow those three eminent contributions. The egregious nature of this clause and its subsections goes beyond parliamentary affrontery because they impinge on the devolved Administrations as well. Not content with abusing this Parliament, Clause 22(6) will abuse the other Parliaments in the UK as well by creating new powers for Ministers of the Crown over those of devolved authorities. As the delegated powers memorandum blithely puts it:

“Where a matter would normally fall within the legislative competence of the devolved administrations and the passage of devolved primary legislation would not be appropriate”,


as the Minister of the Crown would say, “or timely”, on a timetable that the Minister of the Crown would set,

“it may be appropriate to create a new devolved delegated power by exercise of this power.”

It is a Trojan horse for abusing not only Parliament but Parliaments.

I have not been a Member of your Lordships’ House for as long as the noble and learned Baroness but I have been here nine years and I was a member of a devolved authority. This is not how we should be making legislation at all. This is the clause about which Sir Robert Neill said at Committee stage in the Commons,

“this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together”.—[Official Report, Commons, 13/7/22; col. 370.]

The serious issue is that I do not know what limits the Government expect there will be on these powers. Could there be new criminal penalties? If not, they should not be within this. How about new tax powers? If that is not the intent, it should not be made possible by this Bill. Could it affect any part of the withdrawal agreement on other rights and freedoms? If that is not the Government’s intent, they should say so, but there are no such restrictions.

This is a Trojan horse, and in looking at some of the clauses a side of me wonders whether I should oppose it. It is so broad that we could rejoin many of the EU institutions we have left—just from this wee clause in this wee Bill. That might suit our Benches, so perhaps we had better not complain too much. Through Clause 22(6) and other sweeping regulation-making powers, we could rejoin the customs union and many of the institutions. If that is not the Government’s intention, the Minister should say so at the Dispatch Box. If he does not, we could use it for that purpose.

More seriously, and I will close on this, the noble Lord, Lord Kerr, has been consistent since the outset in using a phrase that has struck me: this is not what we do when it comes to international law. The noble and learned Lord, Lord Judge, hoped over the weekend that this was all a dream and that he would arrive here on Monday to find that, like Bobby Ewing in “Dallas”, these three days in Committee never really happened. I arrived back in the country this morning from speaking at a parliamentary gathering in Buenos Aires—a network of parliamentarians supporting the International Criminal Court—in the presence of the president of the ICC. I have to say to the Minister that there have been very few times that I have been embarrassed to say that I am a British parliamentarian, but the knowledge of parliamentarians from across the world about what we are doing with this legislation shocked me. They know what we are doing. There are international gatherings about how Parliaments can support the international rules-based system, the ICC and international standards in law. This is not what we do. But it is even worse than that because our Government tell other countries what they should not do, but we are doing it at home. This is an opportunity to stop it. I hope that, even at this stage, the Government will listen to the noble and learned Lord, Lord Judge, and just stop it.

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[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. The example he cited with regard to the operability of the red lanes is covered earlier in the Bill, so the regulation powers were debated. So I do not understand why they are needed in such a broad manner under this clause, which does not even have any of the restrictions of the previous ones. If they need powers for the operation of any of the new red lanes, they are there in Clauses 4, 5 and 6. We have debated these; they exist.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I was merely emphasising. I did refer to earlier clauses as well when I was giving one specific example in this particular group. But I hear what the noble Lord says, and, of course, I recognise that there are issues, particularly in this clause, about the powers that are being proposed. In coming on to that particular point, in relation to the concerns raised by the breadth of powers, each individual power that is being proposed in the Bill is being constrained by its purpose. None of them is a “do anything” power, and Clause 22(1) does not make them so: it merely ensures they can fully fulfil their purposes.

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[Lord Ahmad of Wimbledon (Con)]

That was almost a rhetorical question being posed to me. What I can say in response is that the engagement we are having with the European Union is—as I have said before, and I would be very up front and honest if this was not the case—being done constructively. The EU understands and appreciates the basis of why we are seeking to do this. It also understands that this Bill is being scrutinised, as is happening this evening, and that we are continuing to work in terms of constructive engagement.

As I have said before, with the Commissioner visiting the UK, the engagement between my right honourable friend and Commissioner Šefčovič is in a good place in terms of the level of engagement, in both tone and substance. I cannot go further than that. The noble Lord is very experienced in all things diplomatic and, indeed, is a veteran of the EU Commission. I am not going to speculate on what an EU Commissioner or an EU negotiator will say because I have never been one.

[Lord Purvis of Tweed (LD)]

The Minister is being patient with us and I know everybody is hungry. As the Minister has generously said he is going to write to Members taking part in the Committee, will he add something for my benefit, which is giving examples of other legislation that we have passed in which any and all parts of it can be amended by regulation immediately on commencement?

[Lord Ahmad of Wimbledon (Con)]

This is turning into a very long letter. I think I am going to get something from the Box which says, “Minister, do not commit to writing anything ever again.” But I know what the noble Lord has asked of me.

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Moved by

[Lord Purvis of Tweed]

72: Clause 26, page 15, line 45, at end insert—
“(3A) A Minister of the Crown may not make regulations under this section so as to bring sections 1 to 20 into force until both Houses of Parliament have approved a mandate for negotiations between the United Kingdom and the European Union regarding the Northern Ireland Protocol.”Member’s explanatory statement
This amendment provides that core provisions of the Bill cannot come into force until Parliament has approved a mandate for negotiations between the UK and the EU regarding the Northern Ireland Protocol.

[Lord Purvis of Tweed (LD)]

My Lords, I think the noble Baroness, Lady Hoey, brought about some cross-community consensus earlier when she said that she was glad that I had not spoken. As I am trying to ingratiate myself with all colleagues, it may assist if I speak to the last two groups together, if that is acceptable to the Minister and the Committee, just for efficiency’s sake.

I found it curious earlier when the Minister said that he rejected an earlier amendment because it might give the impression that agreement was in reach and talks would go on. That does seem to be the Government’s approach and, at some stage, we will need much greater clarity about not only the status of the talks—or negotiations, as the noble Lord, Lord Murphy, indicated —but what they are about. We know what the mandate of the EU is, but we still do not know what the position of the UK is. The purpose of Amendment 72 is to indicate that, before any regulations come into force, we would need to know exactly what is likely to be agreed.

Amendment 73, the final amendment in Committee, relates to the points that were very well made by the noble Baroness, Lady Chapman, regarding the fact that there will be a stage when we need to see the regulations, and I need not rehearse that argument again. We cannot do our job without seeing drafts or indications before Report, and it really should be impossible to commence the legislation unless we have seen the regulations. That is the purpose behind Amendment 73, but I beg to move Amendment 72.

[Baroness Hoey (Non-Afl)]

My Lords, I want to make it very clear to the noble Lord, Lord Purvis, that I love listening to him speak and I have no aspersions against him whatever. I was just pleased that perhaps he felt that my amendment was worth considering enough to not contribute.

On this, I know it is extremely difficult for the Minister to do so, but could he give us some idea of how long he visualises—he is smiling, so I think he knows what I am going to ask—the negotiations going on before someone actually says that this is not going to work? One of the reasons I am very keen to get this Bill through as quickly as possible is so that we have it there as a safeguard. It would be helpful to know if there are any discussions going on behind the scenes on timing and just how long we can keep negotiating if we are not getting anywhere.

--- Later in debate ---

Lastly, I thank all noble Lords for their brevity, certainly after dinner. It has allowed us to conclude Committee in a timely fashion, and for that I am grateful. For the time being, I ask the noble Lord to withdraw his amendment.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister, as always. I thank him, the noble Lord, Lord Caine, and the noble and learned Lord, Lord Stewart of Dirleton, the Advocate-General, for their courtesy in Committee, which is very much appreciated. We look forward to the correspondence.

I thank the noble Baroness, Lady Hoey, for her kind words. I was just teasing but, as the Minister well knows, silence from me is not always tacit approval. Still, the question that she asked is valid; we were told in July that talks had been exhausted, but now they have not been. Before we come back for consideration of what we decide about Report, we will need much more information on that.

I very much enjoyed contributing with the noble Lord, Lord Dodds, in Committee. These issues do not tire me because I find them intellectually stimulating, but we owe the people of Northern Ireland our effort, our interest and our scrutiny, because these are the lives of people of our country that we are legislating for and it is an important job that we do. The conference that I was speaking at was with many MPs from different countries who are struggling and fighting for the ability to do what we have been doing in Committee, and I am very privileged to be able to do it.

But, ultimately—the words of the noble Lord, Lord Kerr, always stick in my mind from a previous day in Committee—this is still a pig of a law, with apologies to the Minister. It has lipstick on now, and we have given it a nice frock, but it is still a pig of a law, and that has not changed. It is illegal, it is a power grab, and it will not work. Fundamentally, those three aspects are what we will have to decide on in deciding whether it even goes to Report. Until that point, and with those considerations, I beg leave to withdraw the amendment.

Amendment 72 withdrawn.