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.