Amendment 7

Northern Ireland Protocol Bill - Committee (2nd Day) – in the House of Lords at 5:30 pm on 31st October 2022.

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Lord Purvis of Tweed:

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.”

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

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 BBCQuestion 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.

Clause 4 is an admitted breach of the protocol agreement. It represents withdrawing from the Government’s agreement on customs legislation—the unique competitive advantage described by Brandon Lewis. The powers under this section are affirmative but unamendable if they are changing the law, or making retrospective law, negative elsewhere, but also automatic in the “made affirmative” procedure. As the DPRRC said, the Government’s justification for the Clause 4(3) powers is the need for flexibility and that they are technical in nature and the technical should not be in statute. However, the regulations themselves can amend statute, so if it is justified for primary legislation in the first place, it obviously justifies it for its amendment. Let us not forget that this is international law. On the other point on flexibility, the DPRRC stated that this is

“at the expense of meaningful constraints and scrutiny, precisely because the power is so open-ended.”

The Clause 4(5) powers are also an admitted breach. They replace an agreed joint mechanism with a unilateral mechanism to decide how to categorise goods which may or may not be at risk of entering the single market. This would be a unique proposition for the UK now, contrary to all UK FTAs and the WTO. As the DPRRC states:

“It cannot reasonably be described as technical, administrative or operational detail.”

It is not just that committee. The Constitution Committee has said that

“it undermines the rule of law for the UK Government to invite Parliament to pass legislation in breach of the UK’s international obligations. Enabling ministers to do this through secondary legislation, particularly via the negative resolution procedure, is even less constitutionally acceptable.”

On the basis that this clause is an admitted breach of international law and the Government’s defence for the breach has fallen apart, and, further, that the Government have not presented a replacement for the provisions of the protocol they seek to exclude, and the powers are so broad and have been condemned by the committees of this House, I beg to move.

Photo of The Earl of Kinnoull The Earl of Kinnoull Chair, European Union Committee, Chair, European Union Committee, Deputy Chairman of Committees, Chair, European Affairs Committee, Chair, European Affairs Committee 5:45 pm, 31st October 2022

I was hoping that others would take on the strain. I spoke at Second Reading, and I have tried to come to this really representing the settled views of the committees of this House that have been considering these areas. I think we have heard quite a bit already in debates about the wisdom, or lack of it, of passing something that has the appearance of being an illegality. It does not matter whether or not it is; it is the appearance that is hugely damaging in terms of the rule of law point.

I will add briefly to those general views by saying only that there is a further view, and that is that we have to do an awful lot of deals with the EU over the coming years on a whole lot of things, and it is fairly unwise at this very early stage in the new relationship to have such a big black put up about us not being a reliable partner. I am deeply concerned about that, and it is a concern that has flowed through to the various reports that we have written over many years in this area. I am looking at a solid former member of the European Union Committee in my noble friend Lord Kerr of Kinlochard, who made a very good speech in the previous group, and at my noble friend Lord Pannick, who made an equally good speech and who has been strong in this area. In this group, I do not want to follow up on that, but in view of the fact that everyone seems to be going very wide here in Committee I thought I would just make that point now rather than very late tonight.

The particular point I want to raise came out of the June 2019 report of the European Union Committee, Scrutiny of International Agreements: Lessons Learned. The important thing to note here, I think, is what the man in the street had in terms of scrutiny at an elected or a parliamentary representative level in the moment before Brexit. The cherry had three bites out of it—or, really, two bites and a nibble. The first bite was that his representative in the European Parliament was going through the thing very carefully indeed, as most trade deals and many international agreements were on European matters. The second bite was that, through the action of the scrutiny reserve resolutions, the European Union Committee structure in this House and the European Scrutiny Committee structure in the House of Commons were going through things in exhaustive detail, and the interaction of those two committees and the European Parliament began at the start of any process and followed it all the way through to the end.

The third little nibble came with CRaG, a simple thing which looks at the eventual results; it is a quick yes or no procedure, where the House of Lords does not have any power at all and the House of Commons has precious little. We said in our report of June 2019 that

“the CRAG Act is poorly designed to facilitate parliamentary scrutiny.”

That is pretty clear, and it seems to me on rereading the report over the weekend that it is a pretty good report. I am coming at this in a slightly different way, but what worries me now is that these are core changes to an international agreement that could be made without any form of parliamentary scrutiny—that is true of this group but other groups as well—not even the CRaG form of scrutiny, just a Minister making an agreement. For core changes to core treaties with core partners, there must be a very good parliamentary scrutiny process.

I have not arrived with the answers to exactly what the process should be but I am saying that it must be a very serious process. I think the net effect of amendments like these would be to remove the ability of a Minister to make a decision like that but leave a mechanism whereby a Minister could come back to Parliament and—after suitable scrutiny with a suitable process—have a parliamentary agreement to back up whatever the change being discussed. I have been sitting over this for six and a half years, and I find it very difficult to discuss such changes in the abstract. I would like to discuss specific changes specifically, which is why I feel very supportive of this line of amendments and thankful that they have been tabled.

Photo of Lord Cormack Lord Cormack Conservative

In effect, we have heard this evening a reiteration of Dunning’s Motion in the reign of George III:

“The influence of the Crown has increased, is increasing, and ought to be diminished.”

We are seeing in the Bill not only an abrogation of international law and our obligations, which is what primarily concerns me, but in the process, by the design of the Bill, an accretion of power to Ministers and the Executive—an unbalancing of the relationship between Parliament and the Executive.

The Executive are answerable to Parliament in our constitution. Here, great chunks are being given to the power of the Executive. We owe an enormous debt to the noble Earl, Lord Kinnoull, and his committee, and other committees in this House, which have pointed this out calmly—to use a word I used earlier—but very forcefully. We are embarking on a road towards executive superiority such as is incompatible with our constitution, which is moving away in the 21st century from what our forefathers fought for in the past. We cannot emphasise that too greatly.

The person who could make this speech far better than I and whose name is on the amendments spoken to eloquently by the noble Lord, Lord Purvis of Tweed, is the noble and learned Lord, Lord Judge. Time and again, in a variety of Bills and contexts, he has pointed out to your Lordships’ House how the accumulation of Henry VIII powers in the hands of Ministers, without proper accountability to the House, is the road towards executive domination such as is incompatible with our constitution, as I said a few moments ago.

In wholeheartedly supporting these amendments, I urge my noble friend, when he comes to reply from the Front Bench, to address this issue and address it directly. I have great admiration for my noble friend Lord Caine. I certainly have great admiration for his knowledge of, and concern for, Northern Ireland, to which he has dedicated a large part of his life; but is he really happy to be put in a position, or see any of his ministerial colleagues put in a position, where they can override Parliament effectively by diktat?

Photo of Lord Pannick Lord Pannick Crossbench

I completely agree with the noble Lord, particularly in relation to his tribute to the noble and learned Lord, Lord Judge. In his absence—as his junior as it were—I draw this Committee’s attention to the quite extraordinary report of your Lordships’ Delegated Powers and Regulatory and Reform Committee to which reference has been made before, particularly at Second Reading, but it bears repetition. Its seventh report of this Session says at paragraph 4 that this is

“a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms.”

It continues:

“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”.

That is quite an extraordinary criticism of this legislation. It is made not by novices but by highly experienced and respected Members of your Lordships’ House across party lines. I find it deeply regrettable that the Government should think it appropriate to continue with a Bill that has attracted such cross-party criticism.

Photo of Lord Lilley Lord Lilley Conservative

My Lords, I came into Parliament nearly 40 years ago and was told first of all that you should never ask a question to which you do not already know the answer. Now that I have been here so long, I feel that I can take the risk of asking some questions to which I do not know the answer, about a very important aspect of the Bill that has just been raised by the noble Lord, Lord Pannick.

There are two criticisms of the Bill, the first being that it is allegedly against international law. I do not believe that and have not really heard any answers to the points raised by the noble Lord, Lord Bew. What happens when you have two conflicting international obligations? The second criticism is that it relies, very largely and to an almost unprecedented degree, on Henry VIII clauses. Historically, I am very reluctant to rely extensively on Henry VIII clauses, and I was rather shocked by the committee report to which the noble Lord, Lord Pannick, has just referred.

The questions that I want to ask, and to which I do not know the answer, are: first, what is the alternative in the context in which we are to have open-ended Henry VIII clauses; and secondly, why did the Government not adopt that alternative? I assume that the alternative to the Henry VIII clauses is to spell out in detail, in primary legislation, what you intend to do, but the context in which we are doing it is that we are simultaneously legislating and negotiating.

The noble Lord, Lord Purvis, said that we cannot do that. It seems to me perfectly compatible with the doctrine of necessity to do that. We have to do something, we need the power to do something, we have taken the legal power to do something, but we would like that something to be negotiated if possible. So we are simultaneously negotiating and legislating. If we spell out in primary legislation, in detail, the outcome that we want to get, in the context of a negotiation that involves give and take, we either have to spell out the maximum we want—what we want to take without any give—or the minimum we are prepared to accept: what we are prepared to give without any prospect of taking.

In this unusual situation of having to have the legal powers to act while we are negotiating and hoping for a negotiated solution, I am not sure what alternative there is to what the Government have done. I would be grateful to hear what noble Lords would do who share my reluctance to rely on Henry VIII clauses. Effectively, we are saying we are recreating the royal prerogative in the negotiation, giving the Government a free hand, while giving them the power to take legislative action if those negotiations do not achieve a satisfactory result.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 6:00 pm, 31st October 2022

My Lords, in an earlier debate the noble Baroness, Lady Chapman of Darlington, pointed out precedents whereby the Government relied on regulations to give meat to a Bill and they had been published by this stage, so that we had some sight of what we were signing up to.

I am interested that on this occasion, on this group of amendments, my noble friends on the Democratic Unionist Benches have been strangely silent. Given what we have heard from the noble Lord, Lord Purvis, in moving the amendments and from others who supported him, to me, this amounts to a democratic deficit. All the conditions that would normally be put in place, involving a review of the regulations before they came up, appear not to be in play at this time. I hope my noble friends will find common ground with me, recognising that this could be a democratic deficit the likes of which they would not like to see.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, when the noble Lord, Lord Purvis, set out this group of amendments, he rightly said that Clause 4 is at the heart of the Bill, and the debate has really encapsulated that point.

I have a number of questions for the Minister. We will have several debates about the scope of the delegated powers proposed, but as this is the first group dealing with the reports by the DPRRC, it is worth recalling just how unprecedented these were. The DPRRC has chosen on a number of occasions to publish a report while a Bill is still in the Commons—there is nothing unusual in that—but rarely has it been so scathing, labelling the Bill

“unprecedented in its cavalier treatment of Parliament, the EU and the Government’s own international obligations”,

as the noble Lord, Lord Pannick, has said.

The committee was unable to propose tweaks to various powers in the Bill, including those in Clause 4. Instead, it recommended gutting several key clauses. As mentioned in the debate, the Government opted not to respond to the DPRRC before we moved into Committee, even though they had from July to do so. It is hard to see how the two sides can meet in the middle, so, if we proceed to Report, it is quite possible that this House will have to strip out several clauses.

The noble Earl, Lord Kinnoull, made interesting points when he talked about the previous level of scrutiny of EU law, in which this House played a very prominent part. I am sure many Members of this House served on those committees. The EU Committee scrutinised legislation, as did this House and a whole series of committees, and the House of Commons, of course. That was a far higher level of scrutiny than anything being proposed at the moment.

The noble Lord, Lord Lilley, asked an interesting question—and he was fair in saying it was a genuine question—about the alternatives to this multitude of Henry VIII powers. I will be interested to hear the Minister’s response. It seems to me that the alternative is to go through things in detail, as the old EU committee structure in this House used to do routinely. I will be interested to hear the answer to the noble Lord’s question.

We are sympathetic to this group of amendments. I do not know what the noble Lord, Lord Purvis, is going to do but we are happy to support him.

Photo of Lord Bew Lord Bew Crossbench

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, the noble Lord, Lord Bew, raises a fascinating conundrum, but what he said about Article 16 was based on a misunderstanding of what the noble Lord, Lord Campbell, said earlier. I do not think I have met anybody in this House who believes that the right course of action, in abstract, is to use Article 16. The right course of action is to apply the treaty that we signed: that is what a lot of us believe. Clearly, there are others who take a different view. The point that the noble Lord, Lord Campbell, was making—which is clearly correct, and has been made several times by the noble Lord, Lord Pannick—was that there is Article 16. It exists. It is the designated route—the agreed route, the treaty route—to deal with a dispute about the implementation of the protocol. I am not saying that we should be using Article 16. I am saying that we should not be using another means and pretending that it is legal so to do while Article 16 exists. That seems to be the rub of it.

I will try to deal in an amateur way with the interesting questions from the noble Lord, Lord Lilley. I do not know the answer either, but one answer would be the Irish answer: “I wouldn’t be starting from here.” I am sure that the noble Lord agrees with me that if you read Clause 18(1) or Clause 22(1) and (2) of the Bill, the only question in your mind is: is this Lewis Carroll or is it Stalin? These are astonishing powers taken for the Minister, by regulation, to do whatever he likes, providing it is broadly to do with Northern Ireland. As the noble Lord, Lord Pannick, said, the reports that we have seen from three committees—but particularly the Delegated Powers Committee—are devastating. I cannot remember seeing in this House such strong language used in a unanimously agreed cross-party report.

The noble Lord, Lord Lilley, would agree with me that we do not want to be in this situation. There must be another solution. As a former negotiator, I would say that it is crucial to avoid putting the ball in your own net. Frankly, attempting this legislation while also attempting—or claiming to be attempting—to conduct negotiations, is absurd. Here I part company with my friend the noble Lord, Lord Frost, whose third argument today was exploded by the noble Lord, Lord Purvis. He said that it is necessary for negotiating reasons to advance this protocol; this is what will make the other side sit up and pay attention. You cannot argue both necessity and that. In my view, you would be mad to argue that, because on the other side of the table it is not a playground spat. On the other side of the table is a grown-up group of 27 countries that believe in the rule of law and are concerned that bad precedents should not be set. They cannot possibly concede that, because there is a blunderbuss on the table, they must give you what you are asking for in negotiations. They are not going to do that. Therefore, my answer to the conundrum of the noble Lord, Lord Lilley, is that it is a great mistake to legislate in these terms while you are negotiating. If Ministers are telling the truth about their wish to negotiate a solution to this, the last thing they should be doing is putting forward this Bill.

Photo of The Earl of Kinnoull The Earl of Kinnoull Chair, European Union Committee, Chair, European Union Committee, Deputy Chairman of Committees, Chair, European Affairs Committee, Chair, European Affairs Committee 6:15 pm, 31st October 2022

My Lords, I really agree with every word that has just been said. I have another suggestion for the noble Lord, Lord Lilley. The truth is that most liberal democracies in the world exist in an environment where major changes to international agreements or the making of international agreements are scrutinised by Parliament on a fairly open basis. We all know, for instance, that Mr Šefčovič has a mandate. In fact, we know an awful lot about that mandate. Mr Šefčovič regularly briefs committees in the European Parliament and has a pretty good ability to bring the European Parliament along with him, which is important—and, indeed, to bring the 27 nations along with him as well.

I am not suggesting that we should copy and paste that, but I note that the PACAC, a committee of the other place, was in Norway last week. I had a detailed discussion with a member of that committee on Friday about how Norway deals with this. In fact, Norway also brings along its Parliament in a very open way and this does not appear to interfere with the negotiating process in the way the noble Lord was worried about. These are major changes to an international agreement. The international agreements process that we have, which we need to rebuild in this Parliament, should take account of that and should apply. That is a fairly open process to the committees and Members of both Houses; I feel that strongly. I do not see any other liberal democracies doing this. We are unique in having cut Parliament out of the process. I see no other democracies having problems of the nature that the noble Lord, Lord Lilley, is worried about. I could see that he was genuinely worried, but I have to say that I am not.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat

My Lords, I will not rehearse what I said previously about Article 16, but I will see if I can answer the question posed by the noble Lord, Lord Lilley. If you are faced with two instruments that appear to be in conflict—which I think is what we are arguing—the first thing you do is have a detailed analysis of these instruments to see whether there is a provision in them that will enable you to reconcile the difference. The advantage of Article 16 has just been set out by the noble Lord, Lord Kerr. You are adhering to the treaty by using a term within the treaty that helps you avoid being in conflict with the other treaty. That is a possible way of doing it.

Photo of Lord Bew Lord Bew Crossbench

If I may intervene briefly, I have tried to explain that I had an intense relationship with Article 16 when it was deeply unfashionable in this House. Many times in the last year, I have wanted to argue privately with the Government that it should be applied. The arguments made for it are impeccable and have been for years; that is simply the case. The problem is that this is not conceivably a rational moment. There are complaints about the Bill. Does it matter what the Irish Foreign Minister says? It is said that it does not matter; we are choosing to disregard it. This is a moment when we are negotiating seriously with the EU. Suddenly to come in and say, “By the way”—and the logic is, in general terms, superb—“we are applying Article 16 now”, is bound to be destructive of the negotiations that are proceeding. We must respect the reality of the moment.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat

But if the consequence of doing so is to embrace a Bill which drives a horse and cart through the procedures and principles by which this Parliament operates, surely that is an inhibition and we should avoid it at all costs.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

To prevent the noble Lord, Lord Bew, having to get up and sit down again, I ask him again to appreciate and acknowledge that, as the noble Lord, Lord Kerr, said, nobody in the debates we have had, whether at Second Reading, on the first day in Committee or today, is arguing to invoke Article 16. No one is advocating its use, let alone now. All that is being said is that the legal argument of necessity invoked by the Government is undermined by the fact that they have never resorted to the use of Article 16; hence necessity is on very shallow foundations.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, is there not a very short answer to all of this: not to proceed with the Bill?

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP

My Lords, if I may make a short point before the Minister gets up to speak, it is clear that we are going to have a debate on international law and so on about every set of clauses. All I want at this stage is to draw attention to the actual situation and practical reality for people moving goods between Great Britain and Northern Ireland, as a result of the application of EU customs law for those goods coming to Northern Ireland. Briefly, and cutting through the arguments about international law, let us have a look at the reality.

The Government will have spent £340 million through the Trader Support Service helping traders process 2.3 million customs declarations for trade between two parts of the United Kingdom. For those 2.3 million declarations, by the end of the year the taxpayer will have forked out almost £350 million, and that comes on top of the movement and assistance schemes and other schemes designed to help people with the paperwork. According to some estimates, it could amount to £500 million. That support is not guaranteed to continue into the future. It has been extended for another year but at some point those costs will have to be borne by hauliers—the companies which move those goods—and consumers. There will certainly be a massive increase in the cost of living. Already, as a result of the paperwork that people have to go through, even with that support we have seen example after example of firms in Great Britain simply refusing to have any further dealings with Northern Ireland. It is simply not worth their time, effort or money, even with those vast millions going into the Trader Support Service.

I urge noble Lords to look at what people in companies such as McBurney Transport and McCulla—the people who transport goods to the Irish Republic as well, not just Northern Ireland—are saying about the paperwork and the reality of these customs burdens on trade between one part of the United Kingdom and another, and then tell people that this is a sensible way of approaching it. We need change. I understand the arguments about international law and all of that but we need to have this rectified. We cannot continue to fork out this kind of money and still have companies refusing to do business with one part of the United Kingdom; namely, Northern Ireland.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

My Lords, I acknowledge that, as with the previous group, we have perhaps gone wider than the specific amendments. In the interests of time, and since we need to make progress on the Bill, I am not going to go into the more general arguments. My noble friends on the Front Bench and I have articulated several times the Government’s position on the need to proceed with the Bill, and those circumstances remain. I am reminded that when the debate started this afternoon, my noble friends Lord Cormack and Lord Howell, I think, among others, returned to the Front Bench the point about the necessity—to use a legal term, but not in its application to the Bill—to proceed with it. I assure the House as one of the three Ministers responsible for the passage of the Bill that, while in the middle of a reshuffle, our weekends—I speak for all three of us—have been focused on the detail of the Bill and proceeding with it. The fact that the three of us are still present reflects the Government’s current intent, because we feel that this is necessary.

I have heard the arguments again today, many of which were articulated at Second Reading and in our debates so far in Committee, and I understand the points made by the noble Lord, Lord Pannick. I listened carefully on the issue of Article 16, and he is of course right. I know that the noble Lord has a different perspective, but that is why I say that we have never said that Article 16 is off the table. It remains an instrument available to the Government within the treaty that we have signed, as noble Lords have said. However, there is a reality, which was articulated very well just now by my noble friend Lord Dodds. The reality is what businesses are now facing. The protocol is not working and if is not working in the interests of any part of the United Kingdom, as its Government we are obligated to ensure that we provide a practical solution which works in the interests, first and foremost, of the citizens of our united United Kingdom. That remains the primary intent of the United Kingdom Government.

I will pick up on some of the specifics. In introducing his amendments, the noble Lord, Lord Purvis, asked about published statistics. What I can share with the noble Lord is that HMRC has published summary data on the numbers of declarations, their associated value and the number of businesses importing goods into Northern Ireland from Great Britain in 2021. I will give a couple of summary statistics, if I may: in 2021, over 1 million full declarations were declared to HMRC. The number of businesses associated with those full declarations was 10,400, while 100 GB businesses have stopped supplying the Northern Ireland market already. The requirement to follow EU rules is one of the factors behind this situation, as was alluded to in the detail of the contribution of my noble friend Lord Dodds.

I turn to the amendments in front of us, including Amendment 7 in the name of the noble Lord. As many noble Lords noted, a number of the amendments are on the recommendations of the Delegated Powers and Regulatory Reform Committee, to which the Government will respond, as I said earlier, as they will to the report of the Constitution Committee. I have checked with officials and we will certainly seek to respond in advance of Report.

I acknowledge the reservations raised today. The noble and learned Lord, Lord Judge, is someone who I respect greatly and have great admiration for. I assure noble Lords that in our engagement on the Bill, it did not surprise me at all that the majority of our discussions began, as he said, “Well, Tariq, you know what I’m going to raise with you.” Yes, the Bill has many clauses where the Government seek to take certain powers because we believe that they are necessary. The Government remain of the view that these delegated powers are required, and will enable secondary legislation to set out precisely the UK or non-EU movements that will be excluded by Clause 4(2).

The operation of the protocol, as we heard from the noble Lord, Lord Bew, and my noble friends Lord Dodds and Lord Lilley, has shown that the manner and nature of the issues faced by businesses in moving goods have not been static over time. There needs to be flexibility to respond to the changing circumstances in order to maintain the effective flow of goods between Great Britain and Northern Ireland. As noted in the 2025 UK Border Strategy, we are seeing long-term shifts in how goods move; for example, through increasing e-commerce and advances in technologies for Governments to manage flow. It is therefore appropriate that means are available to adapt arrangements to be fit for purpose at all times. In the Government’s view, this power is drafted with the appropriate breadth for them to confidently address issues which may arise from time to time that disrupt businesses.

I listened carefully to the noble Earl, Lord Kinnoull, on the importance and appropriateness of making secondary legislative provision and what the alternatives would be. The EU legal acts in the first 10 points in Annex 2 alone are over 1,500 pages in length. Before one even comes to the remaining 37 points contained therein covering other pieces of EU law, that is already longer than some of the longest pieces of legislation currently on the statute book. To draw a totally different example, the Companies Act 2006 is 1,260 pages long. It would therefore not be appropriate, in the Government’s view, to have this amount detailed in primary legislation.

I turn now to Amendment 8, which is also based on the recommendations of the DPRRC and is in the name of the noble Lord, Lord Purvis. Clause 4(5) provides the power to

“make provision about the meaning of ‘UK or non-EU destined’” goods and provides examples of how the power may be used. The conditions and criteria for determining what is a UK or non-EU-destined good are likely to be detailed. These conditions and criteria will need to be mindful of the full complexities of business operations and supply chains, which are constantly changing, as I said earlier. It would not be proportionate to update primary legislation with this level of detail. Similarly, delegated powers enabling detailed provision to be made in secondary legislation are suitable in the Government’s view for legislation dealing with the movement of goods. It would not be appropriate use of parliamentary time to engage in legal technicalities of how a movement is technically defined.

I hope those who seek to understand the Government’s intention in this clause will also consider the explanation that the Government have set out in the accompanying documents and statements. My noble friend Lady McIntosh raised the issues of regulations. I alluded to those earlier and of course I accept them, but as details emerge we will share further details on this. I also point out to noble Lords the volume of secondary legislative provision that might be required. I have been told that annexe 2 of the protocol contains over 1,500 pages. This is greater than the Government of India Act 1935, which the noble Lord, Lord Pannick, may know far better than I do, but, being of Indian origin, “India” certainly resonates with me.

The issue of negotiation and discussion was raised by the noble Lord, Lord Kerr. I had the opportunity to join the last call that the Foreign Secretary had with Commissioner Šefčovič. Therefore, when I talk about the tone and detail of our engagement, I can share with noble Lords that it was positive and constructive. I add the simple point that the EU is aware that the Bill is being proceeded with in your Lordships’ House; it is not lost on the EU. I am sure that it will have a different perspective from the UK Government, but this is a reality. My noble friend Lord Caine is in his place and the same applies to the discussions we are having with our colleagues in the Republic of Ireland. These things should not be factored out; these are the realities and practicalities of where we are today.

The tone and substance of the discussions were constructive—I share that not through something written in front of me, but from first-hand insight—but I cannot speculate on whether that will continue for ever. However, I can share with noble Lords, as I said I would, that we seek to provide, where we can, insights into how discussions are going. At the same time, I reiterate—no noble Lord would expect this, as many, like myself, have business experience—that you do not start showing every single hand and detail and discuss them openly in a negotiation. That point was made very ably by noble Lords who are supporting the Government’s actions on the Bill.

I move to the question of whether Clause 4 should stand part of the Bill. It is a key provision which will allow the implementation of a new regime for the movement of goods entering Northern Ireland and remaining in the UK. Clause 4(1) and (2) makes excluded provision those parts of the Northern Ireland protocol which require goods remaining in the UK to complete burdensome customs and regulatory processes. This includes provisions which would require the goods considered “at risk” of entering the EU to pay the EU tariff.

As noble Lords will be aware, the Government’s intention is to put in place a different regime with a green lane free of unnecessary paperwork, checks and duties for goods remaining within our united United Kingdom. For goods destined for the EU, there will be a red lane where full checks, controls and customs procedures would apply. I have said to officials that we are quite happy to arrange a briefing on the detail of how these lanes may work. I have said this to my noble friend Lord Cormack. Where I can, I will seek to provide clarification and more detail as necessary. If that is something that noble Lords feel would be helpful, we would be happy to arrange that.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 6:30 pm, 31st October 2022

The Minister is referring to the dual regulatory regime. I would like the Government to understand that this will work for some businesses but for other types of industry, such as the dairy and beef industries, it will not. It may be useful for the Government to take further evidence from those industries in Northern Ireland which have practical, on-the-ground experience of, for example, where there is a need for a department of agriculture certificate to certify that milk is milk and is of perfectly good quality. That needs to be addressed adequately.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

My Lords, it would be a choice for that particular business or sector, as my noble friend Lord Caine, has just reminded me, but I take on board the noble Baroness’s point. That is what I have already suggested. When I was preparing for the sitting today, I asked officials if there were different approaches to different sectors. She has highlighted them. It would be helpful on the specifics, and I will certainly take that back to the department, but I have already offered that we could provide more insight and explanations.

On consultation, which the noble Baroness alluded to, we are doing exactly that. Our colleagues in the Northern Ireland Office are speaking with businesses and the practical issues are, where necessary, being highlighted so we can address them. As we proceed with the Bill and have further discussions, the ultimate objective is to ease the burden on the ability of businesses from Great Britain to operate effectively and in a fluid nature within the context of the wider United Kingdom, inclusive of Northern Ireland.

Clause 4(4) sets out a non-exhaustive list of criteria which may be considered when prescribing those movements. It is these “qualifying movements” which will be ultimately entitled to enter our proposed green lane. Clause 4(5) provides a power under which a Minister can make regulations about the meaning of those goods which are heading for the UK, or which are non-EU destined, including by providing the basis under which a trader registered under a prescribed scheme, such as trusted trader scheme, can state whether goods being moved are UK or non-EU destined.

Finally, Clause 4(6) defines the meaning of “qualifying movement” for the purposes of the clause. Qualifying movements are those from any place other than the EU to Northern Ireland and the reverse, including movements within the UK and movements of goods by sea into ports in Northern Ireland. Clause 4 is right at the heart of our intentions in rationalising the processes alluded to by the noble Lord, Lord Dodds, which are required when goods move into Northern Ireland. We have been clear that we do not believe it is appropriate to continue to require full customs and SPS processes when goods are not destined for the EU, and it is this clause that will allow us to put in place a more sensible regime. That is why I recommend that noble Lords allow this to stand part of the Bill.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

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.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

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

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

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.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

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

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office)

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?

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

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.

Amendment 8 not moved.

Clause 4 agreed.

Clause 5: Movement of goods: new law about matters other than customs

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords) 6:45 pm, 31st October 2022

My Lords, if Amendment 9 is agreed to, I will not be able to call Amendment 10, by reason of pre-emption.