Northern Ireland Protocol Bill

Debate between Baroness Chapman of Darlington and Baroness Ludford

Committee stage
Monday 31st October 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I shall speak very briefly because this amendment gives rise to many of the same debates that we have already had this evening. We have tabled Amendments 12 and 15, which would prevent

“the delegated powers in Clause 9 from being used unless a draft of the instrument, a report of a relevant consultation exercise, and an appropriate economic impact assessment have been laid before Parliament.”

The Government say that Clause 9 is needed because the policy is not yet developed. We are worried about this, so these amendments would act as a safeguard by preventing the power being used unless the conditions in the amendment are met. We think Northern Ireland businesses would be better served if our amendment were to be accepted, notwithstanding all our previous comments on our approach to the Bill more generally. Businesses were telling us—I am sure other noble Lords have heard the same—that they want and need stability, predictability and security. I do not think this will be delivered by the Bill; it comes only through negotiation. We must amend the Bill; it is what we are here to do this evening. We have made this suggestion because we think it would be particularly helpful to the business community to have more of a say and to get more clarity from the Government on what they might intend to do.

[Baroness Ludford (LD)]

My Lords, I support these two amendments, but they are not even contesting the making of regulations or asking for substance or content; they just require a process for making the regulations. As my noble friend Lord Purvis said in the debate on the previous group, there is nothing in the Bill on consultation. Assuming that Clause 9 remains—which we hope it does not—this amendment is trying to put some meat on the bones that should probably already exist. The Government said in the delegated powers memorandum that the regulations under this clause would

“need to reflect the results of consultation with businesses”.

The problem is that this clause provides for no such consultation. Our Delegated Powers Committee commented:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on.”


The committee’s comment on Clause 5 is also pertinent and relevant:

“Ministers are said to need flexibility, but the reality is that policy has not yet been formulated … the Government could have formulated their policy, consulted on it, refined it (if necessary) and then brought forward legislation with the details filled in. This would have facilitated meaningful parliamentary debate.”


Yet, the Delegated Powers Committee went on,

“Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa”.

I think I may be repeating what my noble friend has already quoted.

Amendment 15 therefore contains reasonable and sensible conditions for a draft of any proposed SI—for a report on consultations with business and an economic assessment to be laid. I suggest that the Government will, or ought to, have some difficulty in finding arguments to resist these amendments.

Northern Ireland Protocol

Debate between Baroness Chapman of Darlington and Baroness Ludford

Tuesday 17th May 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the Minister for repeating this important Statement. That the Government have been preparing legislation relating to the Northern Ireland protocol is no secret. Senior members of the Cabinet have taken every opportunity to issue threats to this effect in recent weeks, but we should be thankful that the tone of the ministerial intervention today has shifted somewhat. We have gone from what felt like the inevitability of unilateral action to this proposed Bill being a mere insurance policy. However, as I will return to, and as many commentators have said in recent times, the Government’s approach to this challenge posed by the protocol has been erratic and at times reckless.

The backdrop of the dispute over the protocol now is, in part, the crucial question of the formation of a new Northern Ireland Executive. The Prime Minister was clear in his Belfast Telegraph article that he believes that Sinn Féin, as the largest party following the Assembly elections, has secured the position of nominating the First Minister. He called for the DUP to nominate a Speaker and First Minister as a matter of urgency, to get the Assembly up and running, and for once we are in full agreement with the Prime Minister. The people of Northern Ireland want their leaders, of all parties, to get on with the job. The cost of living crisis continues to bite, and the Assembly and the Executive will have an important role to play in the coming months. Politicians must, first and foremost, fulfil those duties while negotiations on the protocol—which the majority of newly elected MLAs wish to see fixed, not scrapped—continue.

We on these Benches understand the concerns regarding the operation of the Northern Ireland protocol. We have long called on both sides to show the flexibility needed to ensure that the protocol works in a way that enjoys the highest possible public support. The operation of the protocol has revealed tensions which need to be addressed; however, it has also been used by some to stoke tensions, and such behaviour is highly irresponsible. To uphold the principles of the Belfast/Good Friday agreement and sustain the peace that it brought us, we need willing from both the EU and the UK Government. Checks must be reduced to the absolute minimum necessary.

There must be an element of common sense as to exactly what trade is subject to which checks. It cannot be right that goods from Great Britain which have no realistic prospect of moving into the EU single market are subject to excessive, costly and burdensome checks that only hamper business, inhibit trade and undermine confidence and consent. We have long called on both sides to show the flexibility needed to resolve this. We need calm heads, responsible leadership and serious diplomacy from both sides, statecraft, diligence and graft. While the process is under way, the people of Northern Ireland need and deserve a functioning Government who reflect the outcome of elections, as well as restoring the institutions created by the Belfast/Good Friday agreement.

The Government negotiated this deal. They signed it and ran an election campaign all about it. The Prime Minister refused to be upfront about the implications of his agreement, and that is his failure. Yesterday, in an interview with the BBC’s new political editor, the Prime Minister acknowledged that the Northern Ireland protocol was his creation. It is important that he has finally taken responsibility for negotiating an agreement that required, by its very design, some checks in the Irish Sea.

Aspects of what the Government are proposing on the protocol are helpful. However, these must be subject to urgent, detailed and technical negotiations, rather than endless media briefings. Labour has long argued that a veterinary agreement with the EU would eliminate the vast majority of checks on produce going from Great Britain to Northern Ireland. Although this would not solve every problem—I accept that—it would be a sensible way forward. Crucially, it would act as the starting point for all sides to work with communities and businesses in Northern Ireland to find other creative solutions to minimise these checks.

One thing which is certain in this process is that the breaking of an international treaty will do nothing to improve the current situation. The proposed Bill may have been called an insurance policy but, if it is taken forward, it would amount to a major breach of our international commitments. There is no long-term unilateral solution to the issues with the protocol, and to pretend otherwise is disingenuous and will make achieving a negotiated settlement even harder. The EU has already said that it will respond to any breaches of the protocol with all measures at its disposal. We think that that is code for trade friction, which affects the cost of living and which people across this country do not want and cannot possibly afford, given current pressures.

Simon Hoare, chair of the Northern Ireland Select Committee, has said:

“Respect for the rule of law runs deep in our Tory veins, and I find it extraordinary that a Tory Government needs to be reminded of that.”


I suspect that the Minister will have some sympathy for what his colleague has said today. I hope that he will impress on the Foreign Secretary the need to de-escalate this situation and to take the right and responsible approach that is in the long-term interests of the people of Northern Ireland and the UK as a whole.

[Baroness Ludford (LD)]

My Lords, while political knockabout is tempting in the surreal circumstance to which the Government have brought us in respect of the Northern Ireland protocol, the situation is too serious and dangerous for that. The Foreign Secretary’s claim that the Government’s

“first priority is to uphold the Belfast/Good Friday agreement in all its dimensions”

does not stand up to scrutiny. The protocol exists solely because of the nature of Brexit and the hardest of hard versions that the Johnson Government and their DUP allies chose, despite the voters of Northern Ireland not supporting a Brexit of any kind. Brexit was the original sin. The Government’s choice meant that the UK and Ireland were not aligned within the customs union or the single market. The result was the need to manage the particular circumstances of Northern Ireland through special arrangements. It was impossible to have the hard Brexit cake and to eat the no-checks-across-the-Irish-Sea cherry. However, the Prime Minister and his supporters seem never to have accepted the consequences of their choices and the treaties they signed.

The protocol can be changed only by an agreement between the UK and the EU. At the time it was signed, there was still hope that the trade agreement would supersede the protocol and make it unnecessary. Hence, the Government’s impact assessment in October 2019 said:

“The Government intends to conclude a future relationship with the EU that is centred on a comprehensive free trade agreement with the EU and the outcome of this will affect the operation of the protocol.”


However, that comprehensive FTA never materialised, so the protocol—imperfect as it undoubtedly is—is still the essential best of a bad job. The Government’s announced action will put the UK in potential breach of international law. Like the noble Baroness, I will quote the Conservative chair of the Northern Ireland Affairs Committee, Simon Hoare, who quoted Margaret Thatcher as saying:

“The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when it’s inconvenient … then nothing is safe—not home, not liberty, not life itself.”


The Assembly election results show that a clear majority of voters and elected Assembly members not only want to see the political institutions operating immediately but generally support the protocol. This also applies to the vast majority of the business community, who also want a pragmatic, not confrontational, approach.

The dual-market access that Northern Ireland enjoys is an economic asset, but the Government are not listening to these messages. In the strong words of my friend in the other place, Stephen Farry of the Lib Dems’ sister party, Alliance, which did so well in the Assembly elections:

“This proposed action is unwanted and unwarranted. Indeed, it may prove to be counterproductive and destructive. Much of the rationale cited by the Government is disingenuous … Any action or even threat of action that takes Northern Ireland out of the single market, including disapplying the jurisdiction of the ECJ, will undermine our region”—


I repeat, “will undermine our region”—

“as an investment location. It would also lead to even greater political instability.”

These are serious words for a very serious situation.

The disingenuous nature of the Foreign Secretary’s Statement is illustrated in her assertion that

“all Northern Ireland’s political parties agree on the need for changes to the protocol.”

Of course those parties, including Alliance, which accept the protocol still want to see improvements in its operation, because it is certainly necessary to address a range of issues. However, the way forward lies in partnership and mutual agreement between the UK and EU around legal and sustainable solutions to reduce the nature and level of checks through various mitigations and flexibilities in the operation of the protocol, or via building on the trade and co-operation agreement.

I note that the Foreign Secretary says that our preference is to reach a negotiated settlement with the EU—so please just do it. One extra that the Government should pursue is a veterinary or SPS agreement; there is a clear alternative here to just whingeing about SPS checks. Can the Minister explain properly why this is not being pursued? Yes, the EU should display even more flexibility than it has already—over medicines, for instance—but it also says that the flexibilities it has proposed have not been fully explored by the UK Government, and it cannot be expected to do more when the Government display belligerence instead of co-operation and undermine trust, especially as some of the solutions involve the EU subcontracting functions to UK authorities.

To risk a trade war with the EU at a time when there is a military war in Europe and when the UK economy is weak and vulnerable is deeply irresponsible. No wonder the Cabinet is split. I hope that the necessary negotiations will be taken forward.