Northern Ireland Protocol Bill
Wednesday 2nd November 2022
(1 year, 5 months ago)
Lords ChamberNorthern Ireland Protocol Bill 2022-23 View all Northern Ireland Protocol Bill 2022-23 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 52-III Third marshalled list for Committee - (31 Oct 2022)
Lord Purvis of Tweed
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.
Lord Browne of Belmont (DUP)
I rise to speak to Amendment 22 and, indeed, all the other amendments. I am conscious that this amendment and others like it have been developed in response to concerns raised by the Delegated Powers and Regulatory Reform Committee’s report and, as such, are informed by growing concern about the Executive’s use of delegated legislation. In the context of the legislative challenges posed by Brexit and Covid-19, there has been increased use of delegated powers, which has concerned the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee and given rise to two important reports, Democracy Denied? and Government by Diktat.
The basic thesis of these reports is that there is a growing democratic deficit arising from the fact that delegated legislation does not afford the same opportunity as primary legislation for parliamentarians to scrutinise its development. The point is not that the delegated legislation is always wrong but that to avoid creating a democratic deficit, wherein the representatives of the people in the legislature are afforded less opportunity to shape legislation than in primary legislation, the use of delegated legislation must be limited.
As a democrat, I applaud this general approach and believe it is imperative in a functioning democracy that the opportunities for people to shape legislation through their parliamentarians in the legislature are maximised. Of course, there are ways in which a democratic deficit has been felt in our politics other than overreliance on delegated decision. In truth, the reason we are considering the Bill at all is the concern about the democratic deficit at the heart of the EU project, which was undoubtedly one of the key drivers of Brexit.
Brexit has been applied in England, Scotland and Wales with the effect that the democratic deficit arising from EU membership has been fixed in those parts of the United Kingdom. Laws are now made for Great Britain by Great Britain, but the democratic deficit in Northern Ireland has not been fixed. It has not been alleviated, it has not even been left untouched and it has not been allowed simply to deteriorate. The underlying difficulties have instead been allowed to become total, such that rather than amounting to a widening of the deficit—a democratic shortfall—that shortfall has been replaced by something much more radical: the complete negation of democracy in relation to the development of 300 areas of law to which we are subject.
The protocol that Parliament imposed on Northern Ireland against the clear wishes of its unionist representatives was one that, rather than addressing the principal difficulty with EU membership for anyone raised in the Westminster political tradition, has made it infinitely worse. In this context, the significance of Amendment 22—and, indeed, all the amendments debated tonight—is that it introduces not a regulation-making power that is part of a process that represents a step backwards, but one that is a step forward.
Finally, to unpack this problem, rather than using my words, I will use some very powerful words of a man living in Northern Ireland who wrote to my noble friend Lord Morrow, who unfortunately is unable to be in his place tonight due to a family illness. This man expressed his dismay at the actions of some parliamentarians from outside Northern Ireland towards our problems. I will be quick and quote just a few passages from his letter.
He writes: “I am deeply concerned about the approach adopted by some Peers who are seeking to remove the regulation-making powers from the Northern Ireland protocol rendering it ineffective.” He goes on, very powerfully, “Anyone who does not understand what a significant, democratic step forward that will be for us in Northern Ireland is completely detached from the reality in which we live and clearly has no idea what it feels like to have your votes slashed, as ours have been. I find it shocking that some Peers seem so absorbed in their Westminster bubble battle against delegated legislation, supposedly in the name of concern for democracy, that they should have completely lost their sense of perspective such that they cannot see how inappropriate it is to oppose these regulations in the name of opposing a democratic deficit. If they wanted to have a fight about delegated legislation out of regard for a concern for democracy, this was the last context in which to do so. It is so striking that the democratically elected House did not pick this fight on this. I would urge you to call Peers to recognise how these regulation-making powers will help restore some much-needed parliamentary democracy in places where it has been completely taken from us and help restore what was promised in the Belfast agreement, namely our right ‘to pursue democratically national and political aspirations’. That right has been taken from us in the 300 areas of lawmaking. These regulation-making powers represent a first step in their restoration. Rather than opposing them in the name of democracy, Peers should examine these powers in context and celebrate them for what they are, a critical step in restoring democracy to Northern Ireland.”
By all means, declare war on regulation-making powers that reduce democratic scrutiny but, please, do not declare war on these regulation-making powers, which take a first, crucial step in its restoration.
Baroness Chapman of Darlington (Lab)
My Lords, many of us are worried about the powers to regulate, but it is not just about democracy. I have time for the concerns expressed in the email that was just read out—of course I do. I just point out, however, that the situation that we are in that is so objectionable to the noble Lord’s colleague in Northern Ireland came about because of the actions, decisions and agreements made by their elected Government. Sometimes that is how it works, too. The problem that I have with the powers is not just the issues that we have heard expressed extremely well by those far more qualified to do so than I am; it is that we do not know what Ministers intend to do with those powers. There is a circumstance in which the gentleman who wrote the email might find himself doubly aggrieved, because we do not yet know what it is that Ministers will do to resolve the problem that the noble Lord has, or whether the actions of the Government in the future would actually be ones that would satisfy that grievance. That is where I am coming from. It is because there is a lack of clarity, and uncertainty; there is an option to negotiate that is not being taken. I am now repeating myself, and using yet another set of clauses to make exactly the same general points.
I am not going to repeat what has already been said, but I want to make a wider point about the approach to law-making that the Government are getting increasingly fond of. We see some extreme examples of it in this Bill. The noble Lord, Lord Purvis, when he introduced this set of amendments, said that he could not actually be clear about how Clause 14 would be used by the Government, because, in the words of the DPRRC, the memorandum has so little to say about this broadly worded power. Nothing is said about the sort of provision that could be made under it.
Clause 14 tells us—in case we did not know—that overriding parts of the protocol is going to require a whole host of consequential changes elsewhere, and that is what I will talk about this time when we are talking about powers. We have been here before. Noble Lords will remember that as we approached the end of the transition period, departments rushed to make various changes to the operability of retained EU law. In a worryingly high number of cases during that process, as I remember, the Government made mistakes and further, correcting regulations then needed to be brought forward. This exercise is no simpler than that. If anything—because this Bill is highly contentious and because of the wider context—it is even more complicated than that previous exercise.
We need to be mindful of how these things are going to work in practice. If the Government get their Bill, how is this really going to work? Have they actually considered this? Given the difficulties that the Government had with revoking things such as the duty to post reports to the European Commission, how confident can we really be that an as yet unclear policy direction can even be delivered in a way that is in any sense timely and accurate? That really will matter to the correspondent of the noble Lord opposite. What I am saying is, putting aside my dislike for the Bill, this is not a good way for us to be making law or for the Government to put their policy into practice.
Just imagine that this Clause 14 is available to Ministers —and I hope this does not happen, but suppose it did—can we have some kind of indication from the Minister of how long this process is going to take? How many SIs does he think are going to be needed; how will the Government sequence this workload? The lack of planning around some of this in previous endeavours has really caused problems, and we do not want to be in that place again. I still think this is a bad Bill in principle, but I am afraid that its implementation is likely to render it completely unworkable in practice.
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.
The Deputy Chairman of Committees (Lord Lexden) (Con)
In Clause 15, Amendment 24, just for a change, Lord Purvis of Tweed.
Clause 15: Changes to, and exceptions from, excluded provision
Amendment 24
Lord Purvis of Tweed
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.
Lord Bew (CB)
My Lords, the noble Lord, Lord Purvis, has again referred to the issues raised in the eloquent letter read out by the noble Lord, Lord Browne. First, I want to say something directly to his constituent on behalf of the House. This is what the House of Lords does. We have a big thing about Henry VIII powers and would do this with any Bill. I fully expected that and nothing I have heard has been the remotest surprise in several days of debate on the Bill. There has been not even the slightest tincture of originality. However, the problem is that the Bill, unlike the other Bills the House deals with, is not quite being dealt with in the normal way. This is part of a three-dimensional strategy of the Government. The other dimension is negotiations with the European Union. When I said weeks ago in this Chamber that these negotiations would proceed and would clearly not be badly affected by the existence of the Bill, I was greeted with howls of disapproval. In fact, we all know that they are proceeding and they have not been affected by the Bill. That is one dimension and the reality.
The other point is that this is related to a strategy that may very well fail to get the institutions of the Good Friday agreement up and running before the 25th anniversary of that agreement. This strategy may well fail, but anybody who thinks that the immediate dropping of the Bill now would help with the return of the Good Friday agreement and that strategy is also wrong. The UK Government are acting under the international agreement—Article 1(5)—which permits the Government with sovereign power to address the alienation of one or other community, as we did over the Irish language a few weeks ago and as we are now trying to do with this issue, because there is significant alienation in the unionist community over the cause of the protocol.
I simply want to make the point that, although I have been slightly cold in response to the noble Lord’s constituent’s resentment, I understand it—but this is what the House of Lords does. It will do its thing about regulatory powers, delegated powers and so on, and it ought to do that thing. What we and the noble Lord’s constituent are entitled to ask is that it should take some account of the fact that we are involved in a three-part process. The Bill is not quite just a thing in this way. It coexists with other key elements: the negotiation with the European Union, which the House now accepts, somewhat grimly, is going on unaffected by the Bill and is by far the best outcome; and the need to act under our international obligations to address the alienation of one community. I simply suggest that it would be less irritating to the noble Lord’s constituent if those points were at least acknowledged.
Lord Hannay of Chiswick (CB)
My Lords, I will briefly follow the noble Lord, Lord Bew, because he raised a point of great importance: we are breaking our teeth on a problem with three parts. At the moment, the Government are giving us absolutely nothing in terms of reporting on what is going on in Brussels. It is simply described as a “running commentary”, as if that were answer to the problem—well, it is not.
I lived through the last time the United Kingdom negotiated with the European Union as a third country, known as our accession negotiations. The process of the negotiations was reported on regularly to both Houses of Parliament by the Heath Government. No one said that was a running commentary or the wrong thing to do. We cannot go on like this, without the slightest idea of what is going on in Brussels, because it very much affects what we are discussing here. As the noble Lord, Lord Bew, rightly said, there is not the slightest sign to show whether our discussion here, and the Government pushing this absurd legislation through in an untimely manner, are either helping or hindering what is going on in Brussels.
I plead with the Minister to programme a moment at which the Government will give both Houses a progress report—not of everything going on in Brussels, but so that we have some idea of how that piece fits in with the others.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Clause 15 contains what the DPRRC called the “most arresting” powers in the Bill, allowing Ministers to rip up and rewrite an Act of Parliament by granting the power to classify parts of the protocol as excluded provision or to tweak the precise nature of that classification, with virtually no parliamentary oversight.
The Minister will argue that the Government have constrained themselves by listing nine permitted purposes for which changes can be made to the application of the protocol, but that list changes very little. The DPRRC describes it as
“a very broad set of circumstances”.
Unlike SIs made under the EU withdrawal Act 2018, which must be accompanied by a declaration of the good reasons for them, the DPRRC says that there is no obligation for a Minister to include a statement setting out why the regulations are being made.
The DPRRC report does not take issue with Clause 16, although this also confers very broad powers on Ministers: they can make any additional provision that they like in relation to additional excluded provision. Once again, we need the Government to publish indicative regulations: we currently have no idea how the use of these powers would look or how often they would be used. We are told that the tearing up of the protocol is to bring stability and predictability to trade across the Irish Sea, yet these powers theoretically allow Ministers fundamentally to alter trading arrangements at short notice, with no reasoning, consultation or formal scrutiny. As with Clause 14, the provisions appear unworkable, and granting such discretion to Ministers is likely to increase uncertainty and instability.
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.
“(d) Article 18 (democratic consent in Northern Ireland)”Member’s explanatory statement
This amendment adds Article 18 (Democratic Consent in Northern Ireland) of the Northern Ireland Protocol to the list of articles that a Minister of the Crown cannot exercise powers conferred by subsection (2) to provide cease to have effect in the United Kingdom to any extent.
Baroness Ritchie of Downpatrick (Lab)
My Lords, Amendment 25 is in my name and that of the noble Baroness, Lady Suttie. The purpose of this amendment is to prevent Ministers using powers in the Bill to make Article 18 of the protocol excluded provision. Article 18 sets out a democratic consent mechanism that provides for votes to be held in the Northern Ireland Assembly on whether Articles 5 to 10 of the protocol can apply to Northern Ireland. We have already had considerable debate tonight, in the previous two sessions and during Second Reading about the issue of democratic consent. My only regret is that at the moment, we do not have the facility of the Assembly, the Executive and the institutions to provide that necessary democracy to the people of Northern Ireland.
Through this amendment I want to ensure that the wishes of people in Northern Ireland will be respected. I would also like to address the issue of the difference between the protocol and the Belfast/Good Friday agreement. There is a variation of the false assertion that the protocol can be sustained only if it enjoys cross-community support in Northern Ireland. While the Good Friday agreement provides for cross-community support on certain key decisions within the devolved competence of the Assembly or Executive, the protocol as an excepted matter is outside that scope and therefore no such requirement arises.
We must not forget that it was the UK Government, along with the EU, who negotiated this. I would like the Minister to explain how democratic consent as prescribed in Article 18 will be protected. I beg to move.
Baroness Suttie (LD)
My Lords, I also speak in support of Amendment 25, to which I have added my name. The noble Baroness, Lady Ritchie of Downpatrick, has clearly set out the importance of Article 18 of the protocol in allowing the democratically elected Northern Ireland Assembly to give its consent on whether to continue with the protocol in a vote in 2024. I will not repeat the many powerful arguments that she has used, but it is deeply concerning that Clause 15(2) as drafted provides potentially sweeping powers for a Minister of the Crown to remove this right by regulations. It is worth repeating the view of the Constitution Committee, which set out in its report on the Bill that Clause 15
“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.”
To refer to a discussion on an earlier amendment, I understand the frustration of the constituent of the noble Lord, Lord Browne, with what sounds like procedural issues. However, my noble friend Lord Purvis gave a powerful explanation as to why what seem like procedural niceties really matter, because they make a difference in the end to people’s lives if we get them wrong. It is not true to say that we have ignored them; in fairness, in every single debate I have said that I understood the strength of feeling of the unionist community. I have said that in every single contribution that I have made on this Bill. I understand that it is something that people feel extremely strongly about.
Lord Browne of Belmont (DUP)
In fairness to my constituent, I quoted only a very short paragraph. Before that, he went on in quite a lot of detail about what has been discussed here. So, in fairness to my constituent, it was a much fuller letter that we received from him.
Baroness Suttie (LD)
I thank the noble Lord for that clarification. However, probably lots of people out there would regard statutory instruments and secondary legislation, and such phrases, as sounding rather technical—but the point that my noble friend was making is that they are important. If we get the laws wrong, they will directly impact on the people of Northern Ireland, who have gone through a difficult situation since the passing of Brexit.
The effect of Amendment 25 would be to safeguard Article 18 of the protocol and allow the democratically elected Northern Ireland Assembly to have its say. I think the noble Lord, Lord Caine, is going to respond, as he is sitting in the middle of the three noble Lords. I would be very interested to hear, for the record, whether he considers that there are circumstances under which he could imagine using the powers granted under Clause 15(2) of this Bill to remove Article 18 of the protocol and remove the right of the Assembly to have that vote in 2024. If that possibility exists, can he imagine that it would ever actually be used?
On a second issue, in an article in June this year, Tony Connelly of RTÉ raised an interesting question about which version of the protocol would be voted on in 2024 by MLAs. Would it be the original EU version of the protocol, or the version as amended by this Bill, if it were to be passed and enacted? It is an interesting question, and I would like to know the Minister’s view on it. Tony Connelly says that those parties that want the protocol to stay
“will have a very strong case to say in 2024 they are being denied a democratic vote that has been mandated by international law.”
Lord Dodds of Duncairn (DUP)
I shall just intervene briefly in this interesting debate on the amendment proposed by the noble Baroness, Lady Ritchie. Just to follow on on what the noble Baroness, Lady Suttie, has said about which form of the protocol will be voted on, I do not mean this in a trite or trivial way, but I suspect that, if it were the original form of the protocol, it is unlikely that there would be a meeting of the Assembly to vote on it. That is just the reality. As the noble Lord, Lord Bew, said, it brings us back time and again to the fundamental reasons why this Bill is before your Lordships’ House.
I listened to the noble Baroness, Lady Ritchie, say that the protocol is not subject to cross-community consent because it is a reserved matter and does not fall within the purview of the devolved institution. There are a couple of answers to that; the first one is that the idea that we can dismiss the issue of unionist dissent from the protocol on that technical ground is complete political nonsense. It just will not work. We are in a dire situation politically in Northern Ireland, and to use a technical argument is not going to persuade anyone; it is not a good argument to use.
On the actual position, if we believe that the protocol is a reserved matter, then the decision is for this House and this Parliament. However, the Government, by agreement with the EU, decided that there should be some kind of consent mechanism and a vote in the Northern Ireland Assembly. Then they decided to change the rules of the Belfast agreement and the consent mechanisms within strand 1, the Assembly, having given the decision to that Assembly, by taking away the cross-community element of the vote and saying that it had to be by a majority vote. I have said this before: this is the only single major issue in Northern Ireland that can be decided by a majority vote. Everything else is subject to either cross-community agreement or susceptible to being turned into a cross-community vote by a petition of concern. Why did that happen? In order to prevent unionist dissent from derailing the protocol.
When the Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020 were debated in Grand Committee on 1 December 2020—the statutory instrument brought in to implement Article 18—the noble Lord, Lord Empey, and the late Lord Trimble were both present and indicated their strong concerns, as architects of the original Belfast agreement, about how this drove a coach and horses through the consent principle of the Belfast agreement. People in Northern Ireland are mystified, continually, by people who stand up and say, “We are protecting the Belfast agreement; this is all about protecting the Belfast agreement”, and then they want to change the rules of the Belfast agreement when it does not suit them. They cannot have it both ways.
The fact is that Article 18 of the protocol is a vote four years after the event, four years after Northern Ireland is brought under the auspices of the protocol, four years after there has been dynamic alignment with EU law and four years after gradual separation between regulations and laws in Great Britain and the rest of the United Kingdom, in Northern Ireland. We will have had four years during which trade continues to diversify and so on, where laws are being made with no say, and then the Northern Ireland Assembly is to be given a vote, but not on a cross-community basis. No one says, “Are unionists happy? Are nationalists happy? Is there an overall majority?”, which is what the cross-community voting mechanism is. No, it is to be a straight majority vote.
All this is obvious to unionists in Northern Ireland. This is why we have the problems we do. Anyone who tries to pretend, without addressing these matters, without fixing these problems, that we are going to get anywhere is living in cloud-cuckoo-land. We are not going to get devolution restored, because unionists—not just the DUP—will not accept it. I respect greatly what the noble Lord, Lord Purvis, has said on the issue of delegated legislation and Henry VIII clauses. I understand all that and the noble Lord, Lord Bew, made that point. He talks about this draconian power to rip up Acts of Parliament and all the rest of it, but the protocol itself allows, in 300 areas, for EU law to rip up statute. It also provides for the addition of annexes to new EU legislation within the scope of the protocol, in addition to the 300 areas where we dynamically align. That can rip up Acts of Parliament.
So, I accept the problems that have been highlighted by some about giving Ministers sweeping powers, but we have to fix the problems that are there. We have to do it, acknowledging that if we do not, there is real damage being done to the Belfast agreement, as amended by the St Andrews agreement. That should be the priority. Articles 1 and 2 of the protocol make it clear that the Belfast agreement, as amended, is the key overriding objective. If people believe in that, then they should be prepared to consider carefully what we are saying, and they should therefore accept the rules of consent within the Northern Ireland Assembly itself. I look to the noble Baroness, Lady Ritchie, to uphold this. It is ironic, given the changes that were made by St Andrews, that somehow there is now a drawing away from that consent principle.
Lord Hannay of Chiswick (CB)
Although the noble Lord, Lord Dodds, has developed his argument with great eloquence, and at considerable length, he has not yet explained to my satisfaction why it was that his party did not object to the holding of a referendum that took Northern Ireland out of the European Union against its expressed wish as being a breach of the Good Friday agreement?
Lord Dodds of Duncairn (DUP)
With respect, I will answer the noble Lord’s question first. We had a UK-wide referendum. Northern Ireland is part of the United Kingdom, as provided for under the Belfast agreement. The United Kingdom is the sovereign Government. Therefore, it is not that Northern Ireland is some kind of hybrid or special joint condominium with the Irish Republic, and it can go its own way if the rest of the United Kingdom is doing something else. It was a UK-wide referendum and, just as in Scotland, where people voted a different way, so in Northern Ireland—but we had to respect the outcome of the UK referendum.
Baroness Ritchie of Downpatrick (Lab)
I thank the noble Lord, Lord Dodds, for giving way. Further to the point made by the noble Lord, Lord Hannay, would the noble Lord, Lord Dodds, accept that around 56% of the people of Northern Ireland voted to remain within the EU, and we did not give our consent to Brexit. While it may have been a UK vote, and the noble Lord and I will remember well the debates in the other place on this specific matter in terms of the post-referendum Bill and the arrangements thereof, would he accept that the 56% who voted to remain did not give their consent to Brexit and to leaving the European Union?
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.
Baroness Chapman of Darlington (Lab)
I would expect that, too, and I think it is regrettable that we have got to where we are. I was one of those people in the other place who very regularly got up and asked Ministers about Northern Ireland and what the plan was, because there were obviously going to be these issues. There were other solutions; we could have had a customs union or some kind of single market arrangement that would have maybe dealt with this in a slightly different way. I remember talking to one of the noble Lord’s colleagues who said, “Well, we don’t mind what it is as long as we’re all treated the same within the United Kingdom”. Ministers cannot be surprised that we are still having these discussions now.
I want to talk a little bit about this issue of cross-community consent; I am just reflecting on the speech made by my noble friend Lady Ritchie on Monday. It seems clear that the intention of Ministers is to protect the Article 2 rights of individuals, the Article 3 common travel area and the north-south co-operation in Article 11. We have debated the protection of the rights of individuals before, but what we really need is some sort of assurance from the Government that those intentions are reflected throughout the Bill in a consistent and watertight way. So can the Minister confirm that there is no prohibition on the overriding of Article 18 of the protocol, which deals with cross-community consent? We have rightly heard a great deal about this issue, and I would like the Minister to address it to make sure that I have understood it correctly.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, I am very grateful, as ever, to the noble Baroness, Lady Ritchie of Downpatrick, for moving Amendment 25. Much to my astonishment, the debate has veered away somewhat from the strict terms of her amendment. However, let me say at the outset, as I have said before, that I very much share the noble Baroness’s frustration at the lack of a sitting and functioning Northern Ireland Executive and Assembly. Of course, one of the motivations behind this legislation is to try to facilitate a situation in which those institutions might be restored. It is sensible that we always go back to why we are doing this and why we are legislating.
I can also sympathise with the intention behind the noble Baroness’s amendment, but the Government’s view is that it is unnecessary. To answer the noble Baroness, Lady Suttie, and I think to some extent the noble Baroness, Lady Chapman of Darlington, the Government have absolutely no intention whatever to use the powers in Clause 15 to alter the operation of the democratic consent mechanism in Article 18.
I appreciate that there are different views on the mechanism itself; they were aired to some extent a few moments ago. They have been debated extensively in this House, and I seem to recall that they even managed to make their way into the debate on the Ministers, elections and petitions of concern Bill at the end of last year and the beginning of this one—so, if my noble friend Lord Dodds of Duncairn will forgive me, I do not really wish to reopen that whole debate again at this late hour of the evening.
To answer the further question from the noble Baroness, the vote in the Assembly will be on Articles 5 to 10 of the protocol.
Lord Caine (Con)
The vote will be on Articles 5 to 10, regardless of any changes in domestic law made by this Bill.
The noble Baroness, Lady Ritchie, will recall that securing the consent mechanism was, in the view of the Government at the time, one of the key measures which paved the way for them to agree to the revised Northern Ireland protocol in the autumn of 2019. It follows therefore that it would make no sense for the Government subsequently to remove what was seen at the time as a key part of the protocol. It is perhaps because this point is so self-evident to the Government that we did not see the need to protect this element of the protocol under Clause 15(1). The clause is not intended to provide an exhaustive list of every single article of the protocol that we do not intend to alter and therefore we have not listed other articles which we have no intention to amend.
For the avoidance of doubt, I can confirm to the noble Baroness that the democratic consent process remains an integral part of the Northern Ireland protocol. The protocol should not, and indeed cannot, continue unless it retains the support of a majority of Members voting in the Northern Ireland Assembly. Again, I hear the points made by my noble friend Lord Dodds of Duncairn in that respect, but I am just setting out the position as it stands.
I hope that this reassures the noble Baronesses, Lady Chapman, Lady Suttie and Lady Ritchie of Downpatrick, that we have no intention of using the powers to alter in any way the mechanism in Article 18.
Lord Hannay of Chiswick (CB)
The Minister gave a reply to the question about what the basis of the consent vote in 2024 would be, but I really did not understand what he said. Surely the vote in 2024 will take place on the Northern Ireland protocol and its arrangements for implementation as they stand at the time of the review, not as they are now and not as they would be if the Government unilaterally changed the protocol and destroyed it in the process—then there would not be a review at all. The answer is surely quite simple. It cannot be said with precision, because we do not know what the provisions of the protocol and those for its implementation might be at the time the vote takes place, but that is what it will be on.
Lord Caine (Con)
The noble Lord is right that it is probably not fruitful to speculate on what the circumstances might be in 2024. Our first objective is to have an Assembly in place that would be able to consider these matters and take the decision.
In conclusion, I hope I have provided some assurance to noble Lords about our intentions in respect of the powers in Clause 15, Article 18 of the protocol and the consent mechanism. I therefore urge the noble Baroness to withdraw her amendment.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank the Minister for his detailed explanation of the Government’s position. I also thank the noble Baroness, Lady Suttie, my noble friend Lady Chapman and the noble Lords, Lord Hannay and Lord Dodds, for their interventions. This has been a very useful debate underpinning the principle of democratic consent. Irrespective of our differing views on this, I think we all believe in the value of democracy and people making decisions.
I would hope that we could have those institutions up and running in the short term, so that the democratic wishes of the people of Northern Ireland could be protected. I will further examine what Ministers have to say in relation to the protection of Article 18. If I have any further issues, I will write to the Minister, under separate cover, so to speak, and I reserve the right to further examine this on Report if required.
Lord Purvis of Tweed
“(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.
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.
Lord Purvis of Tweed
“(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.
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.
Lord Bew (CB)
My Lords, I thank the noble Lord for introducing these amendments and for the focus on food and agriculture for the first time in our discussions. I understand the reasons behind the amendment, but there is a context here that has a particular sensitivity for the Government, which is that the obvious thing about the protocol is that, under the Good Friday, agreement we already have food safety and animal health bodies. Those institutions are not mentioned in this amendment, but when the Good Friday agreement was functioning it was agreed very early on that they were in play.
We have working arrangements to deal with major animal health problems and so on, and the protocol implies a totally different set of arrangements from those that any casual reader of the Good Friday agreement would say we have made no use of. We already had north/south bodies in place to handle difficulties of animal health, food safety and so on, which will now be reappearing in Brussels.
The difficulty for the Government is that they are well aware that they have to find some way to redress that, and the noble Lord, Lord Purvis, has therefore raised a serious area of concern that requires widespread consultation. However, we will not get any real progress here without returning to the Good Friday agreement and without getting to the idea that Europe extracts powers to deal with veterinary health and food matters and lays down the law.
We already have in place north/south bodies where these things are dealt with extremely well—and have been for a long time. There is a reason why there is a problem here for the Government but, of course, the noble Lord, Lord Purvis, is quite right to raise this general issue of consultation. It is very pertinent, and I am indebted to him that, for the first time in these many days of debate, we are talking about food safety, animal health and what needs to be done. If we act under the principles of the Good Friday agreement, something that is currently very controversial—such as the veterinary clauses of the protocol—could be put into a calmer place acceptable to both communities.
Baroness Chapman of Darlington (Lab)
Very briefly, I very much welcome these amendments for many of the reasons that have been said. We favour a veterinary agreement with the EU to assist us in resolving some of the issues brought about by the protocol.
I use this opportunity to say that I agree wholeheartedly with what the noble Lord, Lord Purvis, said, but remind Ministers of the amendment on consultation and impact assessments that we tabled at the beginning of this process, which we will come back to and want to see addressed either at the end of this process or at the very beginning of Report, if the Government bring the Bill back. That has not gone away and, much as we have engaged with this Committee process, those asks that we had of the Government remain on the table.
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.
Lord Purvis of Tweed
“(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?
Lord Caine (Con)
My Lords, once again I am very grateful to the noble Lord, Lord Purvis of Tweed, for speaking to Amendments 29 and 30, which I will address together. I will try to be very brief in this response, because the answers are actually very similar to the ones I gave in response to the last group. That is, the UK Government, since this Bill was introduced, have engaged extensively across Northern Ireland on the use of the powers in the Bill, including with the Northern Ireland Executive, with Ministers in the Executive when Ministers were in place, and with Northern Ireland departments. The expertise of officials in the Northern Ireland departments, to whom the noble Lord has just referred, is absolutely invaluable and crucial, and I take his point about budgets. Obviously, there are ongoing discussions about how that issue needs to be addressed in the absence of a functioning Executive and Assembly—but I cannot really go much beyond saying that this evening.
As of a minute past midnight on 29 October, we have no Ministers. The views of civil servants are obviously constrained by their positions, but the engagement with them is absolutely invaluable. Once again, the amendments from the noble Lord, Lord Purvis of Tweed, seek to place on a statutory footing things that we are already doing. He has my assurance that we will continue to engage as widely and comprehensively as possible, including with the bodies to which he refers in his amendments. On that basis, I do not think I need to say a great deal more. We are committed to continuing that dialogue with all the relevant departments and bodies, so I invite the noble Lord to withdraw his amendment.
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.
The Deputy Chairman of Committees (Lord Young of Cookham) (Con)
If Amendment 33 is agreed, I cannot call Amendment 34 by reason of pre-emption.
Amendment 33
Lord Purvis of Tweed
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?
Baroness Chapman of Darlington (Lab)
I was wondering pretty much the same thing. This is a slightly odd clause, because it says a lot but actually leaves the door open to not doing anything at all. It gives Ministers the right to change
“any other tax (including imposing or varying the incidence of any tax), which they consider appropriate”.
That is fine, but they might not consider anything appropriate and might not do anything.
Subsection (2) says:
“The regulations may, in particular, make any provision”
to bring closer together, or reduce differences between, various taxes in Northern Ireland and Great Britain. I am sure that that is how the Government want to signal their intention, but the Bill does not do that—it leaves it open to Ministers to do nothing at all, or even to create greater variance in the situation. So I was curious about why the Bill says that, rather than saying, “We will make the situation in Northern Ireland the same as it is in the rest of the UK, notwithstanding the various revenue-raising powers that there are in devolved Administrations.”
Lord Ahmad of Wimbledon (Con)
My Lords, I am grateful to all noble Lords. Debating the nice light subject of taxation for our last group is exactly what the doctor ordered. But I am extremely grateful for the brevity shown, and I will seek the same in my response.
I will respond to Amendment 33, in the name of the noble Lord, Lord Purvis of Tweed. Clause 17(1) is drafted to enable Ministers to make provision about VAT, excise duty and other taxes in connection with the Northern Ireland protocol when they consider it appropriate. The Bill maintains the current baseline of EU rules in this area. The clause is required to enable the Government to make changes that, for example, lessen or eliminate ensuing tax discrepancies between Northern Ireland and Great Britain, support frictionless trade on the island of Ireland and preserve the essential state function.
As EU tax rules are dynamic, it is impossible to specify every circumstance where the Government may need to take such steps, and it will also not be possible to anticipate the precise nature of those steps for all possible scenarios. However, we have already set out some examples, such as alcohol duty and the tax treatment of energy-saving materials, where Northern Ireland cannot benefit from the same policies as the rest of the UK, despite these policies posing no risk to north-south trade.
The noble Lord asked about Section 54 of the cross-border trade Act—that is my favourite subject. But, in all seriousness, I will write on the specific nature of the question that the noble Lord posed to ensure that he gets a complete answer. Of course, I will share that letter with noble Lords and make sure that it is in the Library.
I turn fleetingly to Amendments 34 and 35 in the name of the noble Baroness, Lady Chapman. We have covered the government position on this before, but I add that we feel that appropriate discretion is a necessity if the Government are able to facilitate consistent VAT, excise and other relevant tax policies between Northern Ireland and Great Britain. It would be inappropriate to leave the people of Northern Ireland unable to benefit from the support available to those elsewhere in the UK.
I turn briefly to Amendment 35A, in the name of the noble Lord, Lord Dodds, which would make Article 8 of, and Annexe 3 to, the Northern Ireland protocol excluded provision. I am sympathetic to the amendment’s intentions. It would disapply relevant EU VAT and excise rules in domestic law, allowing a new VAT and excise regime to be implemented in its place. However, the Government’s view is that a blanket removal of EU VAT and excise rules is not the intention in this area. Instead, the Bill maintains the current baseline of EU rules but introduces Clause 17, in conjunction with Clause 15, to grant Ministers the power to disapply or override any restrictive EU VAT and excise laws that apply in Northern Ireland. I briefly explained why we believe that this is necessary.
Baroness Chapman of Darlington (Lab)
I know that it is late and we all want to go home, but the Minister does not have to respond only to the amendments tabled. We are in Committee, and I would appreciate it if he answered my question about the drafting. It leaves a lot of scope, which may not necessarily address the concerns of the noble Lords behind him.
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.