Protocol on Ireland/Northern Ireland: EU Negotiations

Lord Frost Excerpts

Thursday 18th November 2021 Lords Chamber

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, it is a pleasure now to repeat an Answer as delivered to an Urgent Question made in the House of Commons by the Paymaster-General earlier today. The Answer is as follows:

“Let me begin by reaffirming the Government’s commitment to keeping both Houses of Parliament updated on the UK-EU relationship. We remain committed to doing just that. My right honourable friend Lord Frost provided an update to the House of Lords on EU relations just last Wednesday, 10 November, in the form of an Oral Statement. Unfortunately, as this honourable House was in recess at the time, that could not immediately be repeated on the same day. The timing of that update was unavoidable, led by external international business. However, I recognise the importance of keeping both Houses duly informed.”

[Baroness Chapman of Darlington (Lab)]

My Lords, it is shameful that we have come to this today. Last week, the Minister came to this House and committed to ensuring that an equivalent Oral Statement would be made in the other place to reflect his remarks here last Wednesday. That did not take place; instead, the Government attempted to get by with a Written Statement issued on Tuesday, and the words that we have heard today in the other place were only as a consequence of the Minister there being dragged there in response to an Urgent Question. That is not good enough. These issues are of intense interest to Members on all sides of this House and the elected House. It is essential that we do not have this situation again. If the Minister wants to come here and make a Statement then he must ensure, as he promised, that a Statement is made in the equivalent way in the other House at the earliest opportunity.

[Lord Frost (Con)]

My Lords, the noble Baroness is of course correct that I said on Wednesday that a Statement would be made in the other place in due course and that it was made in the way that she describes. How the other place runs its business and chooses its Statements is obviously not a matter for this House. Obviously, I respect the right and responsibility of the Opposition to hold the Government to account, which is why I am here today answering five Questions on very similar subjects, and will continue to do so as long as it is necessary.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the Good Friday agreement requires that there is political balance and respect for both traditions in Northern Ireland. I therefore ask the Minister: in his negotiations with the EU, who is he negotiating for—unionists, nationalists or other? To me, representing the nationalist community in Northern Ireland, it looks very much as if the Minister is negotiating only for unionists.

[Lord Frost (Con)]

My Lords, our interest, and the way that I am pursuing these negotiations, is the interest of everyone in Northern Ireland, and of the prosperity and stability of everyone in Northern Ireland and of Northern Ireland. That is how we seek to pursue this. I believe that is a common aim between us and the European Union, but it seems we interpret that in rather different ways. Nevertheless, I hope we can move forward and get to a position that provides a better outcome for everyone in Northern Ireland than the one that we have now.

[Lord Cormack (Con)]

But does my noble friend accept that the noble Baroness opposite had a point? I wish my noble friend absolute good fortune in what he is seeking to do, and he knows that. But, particularly when we have the good fortune to have the Cabinet Minister in this House, it is particularly important that the other House is informed, if not simultaneously then at the earliest possible moment. I urge him to tell his Cabinet colleagues that there should have been a Statement on Monday in the other place. We really must keep in step on these things. Again, I wish him success. Delicacy is important, but so is parliamentary protocol.

[Lord Frost (Con)]

My Lords, I have said what I have said. I must say that I have a degree of sympathy with the point that my noble friend makes. It is obviously extremely important that both Houses are kept up to date in the most timely and appropriate fashion possible —certainly, I try to achieve that.

[Viscount Waverley (CB)]

What exactly would be the consequences should Article 16 be triggered? How much weight does the Minister give in his negotiating strategy with the EU to the fact that an overwhelming majority of 55.8% voted to remain and 44.2% voted to leave? What were the reasons for that?

[Lord Frost (Con)]

My Lords, we have always said that there will need to be a treaty arrangement between this country and the European Union to deal with the special features of Northern Ireland and to protect the Belfast/Good Friday agreement. I think it is common ground that there will need to be some such special arrangements. That is not the same as saying that Northern Ireland should remain some sort of shadow member of the European Union for certain purposes. In some ways, that is the situation that we have in certain aspects of policy, and that is what we need to change. But it is of course important to respect the balance, and that is why we talk about trying to find a new balance—the right balance—between all the different interests in Northern Ireland.

[Baroness Suttie (LD)]

My Lords, can the Minister say whether a possible decision to invoke Article 16 is more likely to be influenced by an analysis of changes to trade flows resulting from the Northern Ireland protocol or by political factors? Will he undertake to inform this House of the criteria used to take any such decision?

[Lord Frost (Con)]

My Lords, the noble Baroness is right that there are a number of conditions referred to in Article 16 for its use—economic and social disruption, trade diversion and so on—and, although they are conceptually separate, they all sort of feed into each other and create the conditions that might require the use of safeguards. I repeat what I said earlier: obviously we will be transparent and clear and set out our approach to Article 16 and the justification, if and when it comes to that point.

[Lord Hannan of Kingsclere (Con)]

My Lords, I very much welcome my noble friend the Minister’s original Statement, and his repetition today that we are prepared to say that the threshold for triggering has been met. It is indisputable that there has been trade diversion and that there is a political crisis if half the population and every unionist party is against the protocol. Will my noble friend the Minister take this opportunity to confirm that, if we go down the route of Article 16, it will not be simply for the purpose of extending waivers, derogations or exemptions but to take the opportunity to tackle the jurisdictional problem that part of our country is governed from abroad? We exported to the world the sublime idea that laws should not be passed nor taxes raised except by accountable representatives. We should extend that principle to our fellow countrymen in Northern Ireland.

[Lord Frost (Con)]

My noble friend is right that the current situation in Northern Ireland, with various grace periods and other easements in the implementation of the protocol, is nevertheless generating tensions and difficulties, and that the full implementation of the protocol, were that ever to be required, would generate even more difficulties. I think it is correct to think that, if we use Article 16 and safeguards, it will be to improve the situation over the one that we have now.

[Lord Kilclooney (CB)]

My Lords, the Belfast agreement has been mentioned, and I was very much involved in its negotiations. Can the Minister confirm that, in the agreement, all communities were involved and both the Irish Government and our Government were involved? Can he confirm, as Article 1 states, that they unanimously agreed that there could be no change in the status of Northern Ireland without the consent of the majority of the people of Northern Ireland? Can he confirm that the protocol was imposed on Northern Ireland without any consent?

[Lord Frost (Con)]

My Lords, the noble Lord is obviously much more deeply expert in the Belfast/Good Friday agreement than I am, given his background. He is, of course, absolutely right in what he says about the article to which he referred. As regards the protocol, I point out that it was approved by this Parliament, but nevertheless it has created significant difficulties in its implementation. We seek to find a way forward from that and come to a better balance.

[Lord Hain (Lab)]

Is George Peretz QC’s opinion correct when he says that,

“it is not at all clear that the government has a solid legal basis for invoking Article 16, at least in relation to the large majority of concerns set out in the July Command Paper. Therefore, if the UK government chooses to implement measures that are otherwise in breach of the Protocol but which are justified solely on the basis of Article 16, it is at real risk of having those measures struck down in the domestic courts, especially if the measures exceed a limited duration or scope.”?

[Lord Frost (Con)]

My Lords, we will, of course, set out our justification for using Article 16 and the legal basis and so on, if we get to that point. As regards to the legal opinion quoted by the noble Lord, to be fair, there is quite a lot of debate among learned lawyers on this subject. I imagine that, if we were to use Article 16, that would be subject to a degree of legal testing. We will see where that gets to, if and when Article 16 is used.

Ireland/Northern Ireland: Solid Fuels

Lord Frost Excerpts

Thursday 18th November 2021 Lords Chamber

[Baroness Hoey]

To ask the Minister of State at the Cabinet Office (Lord Frost) what discussions Her Majesty’s Government have had with the government of Ireland about that government’s plans to introduce physical checks on solid fuels entering the Republic of Ireland from Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, we are aware of the Irish Government’s plans to introduce new standards for domestic solid fuels under their forthcoming clean air strategy. Of course, the implementation of this policy is for the Irish Government. Our understanding is that they plan to introduce it in 2022. We hope to have technical discussions with the Irish Government later this week to establish some further detail on how and when they plan to bring these measures into force.

[Baroness Hoey (Non-Afl)]

The Minister for the Environment in the Republic of Ireland said that

“inspections of cross-border fuel movements will be required.”

Does the Minister not think that shows huge hypocrisy from the Irish Government? The border sometimes matters—when it affects them—but as far as anything to do with the protocol is concerned, there could not possibly be any kind of border at the frontier. The Minister is being very patient with the European Union. Is he beginning to feel that time is running out and that it is time to simply say, “This is not working; it has to go”?

[Lord Frost (Con)]

My Lords, the noble Baroness makes a very good point. The UK and the Republic of Ireland are obviously different countries divided by an international border, and most areas of national life—for example, legal systems, currency, taxation and many others—change when you cross that border. Some of those arrangements relate specifically to the movement of goods—VAT and excise, for example. These differences are nevertheless managed in market, without the need for physical infrastructure at the border, so I wait for the discussions with the Irish Government. I do not want to prejudge them, but obviously I do not see why we would have any difficulties if the Irish Government wished to manage one further regulatory difference between our two countries in a sensible and pragmatic way, as goods go on to the Irish market.

[Lord Hain (Lab)]

My Lords, both this Question and the Answer are misleading, as 100,000 tonnes of smoky coal goes from north to south on the island each year, and the stricter regulations being applied in Ireland come under EU directives for cleaner air that have been retained and so also apply across the UK today. In Northern Ireland, the Department of Agriculture, Environment and Rural Affairs under the DUP’s Edwin Poots said last year that there will soon be no smoky coal in Northern Ireland. Any future inspection on premises in the Republic of Ireland—not on some border that does not exist—to prevent the illegal sale of such dangerous solid fuel, especially from third countries, is nothing to do with Brexit, borders or customs. It is everything to do with the far more urgent and important challenge of tackling climate change and protecting public health.

[Lord Frost (Con)]

The noble Lord makes a very fair point about the objectives of this legislation. That is why we need to establish the detail of what the Irish Government intend to do and how they intend to go about it. What he says rather proves the point that we have always made: it is perfectly possible for two separate jurisdictions to pursue complementary policy ends that do not involve accepting exactly the same legislation in exactly the same way. That is the approach we have tried to take.

[Lord Dodds of Duncairn (DUP)]

My Lords, to come back to what the Irish Government actually said about this matter—not the interpretation that has just been put on it—are we not in an ironic situation? The Irish Government and others said that any checks on the island of Ireland equalled a hard border and that a hard border would lead to violence. Now the Irish Government are proposing such a thing—that is the reality of it. People can shake their heads all they like, but the fact of the matter is that the Irish Government, when Varadkar came to power, changed what Enda Kenny was doing and said that no checks—even away from the border or digitally—would be acceptable. Will the Minister go back and indicate to his good friend Simon Coveney, whom he is meeting and talking to later today, that no checks means no checks if what they believe is true?

[Lord Frost (Con)]

My Lords, there has indeed always been some complexity in interpretations of this matter. It is certainly true that in areas such as red diesel, for example, where there is a need to avoid fraud due to different excise rates between Northern Ireland and Ireland, there is very good co-operation between HMRC and the Irish Revenue Commissioners. There is lots of multiagency and cross-border co-operation, intelligence and information sharing and so on, and that works perfectly well. I do not necessarily say that is a model you can generalise to absolutely everything, but it certainly shows that this issue is not quite as black and white as it is sometimes painted.

[Lord Howard of Rising (Con)]

Can the Minister say whether the discussion and fuss over fuel is merely an example of Mr Castex’s call for aggressive action against the United Kingdom?

[Lord Frost (Con)]

My Lords, my noble friend makes a very good point. We have been concerned about the threats made against us in the last few weeks, which are not really consistent with a reasonable negotiation. I am glad to see that the French Government have, for the moment anyway, withdrawn those threats. I hope they will do so permanently, because they do not make it any easier to conduct a good process and put relations on to a better footing.

[Lord Purvis of Tweed (LD)]

My Lords, I thank the Minister for his measured responses to earlier questions on this subject, because it is very sensitive. I have in front of me the answer in the Dáil, and there is no reference to border checks. There is reference to Irish local authorities having increased powers to check on solid fuels imported from Northern Ireland, which they had already. Indeed, the north-south Joint Agency Task Force has been operating since 2015 in this regard. Can the Minister please reassure the House that this will not be used to inflame some of the tensions that already exist and that the north-south Joint Agency Task Force will operate normally on fuels to ensure that there is proper consensus on this?

[Lord Frost (Con)]

My Lords, we do not wish to inflame tensions in any way, of course, and I do not think we go about this in a way that would do that. The point that I and other noble Lords have been trying to make is not that this proposal from the Irish Government would require checks at the border—they are not saying that, we are not saying that and nobody wants that—but that it is possible to manage differences without such checks in certain circumstances. This is perhaps a concrete case of that; there are some others.

[Lord Moylan (Con)]

My Lords, far from adding to tensions, is this not actually a rather hopeful sign? As the noble Lord, Lord Purvis of Tweed, said, it is envisaged that local authority officers will check for goods coming into the Republic of Ireland from Northern Ireland that should not be coming in. Is this not a pattern that could be applied, to great benefit and great effect, as a substitute for the ridiculous and unworkable attempts to operate the protocol as it currently works? It might even be called mutual enforcement. It is very hopeful.

[Lord Frost (Con)]

My Lords, my noble friend makes a very good point, as always. It is a concrete case that demonstrates that it is possible to manage these matters in other ways. This is one of the reasons why what we put forward in the Command Paper is a compromise. It is not my noble friend’s proposal. It is that we would for most purposes police goods going into Ireland and the single market in the Irish Sea, but would wish to see goods flowing freely into Northern Ireland. That is a workable and sensible compromise proposal, and in the negotiations we have not yet heard why it could not work.

[Baroness Chapman of Darlington (Lab)]

My Lords, this situation rather highlights the need for a certain amount of bandwidth on behalf of the Government, in that occasionally they need to negotiate simultaneously with the EU and with individual member states. Does the Minister think that the undeniable damage to the Prime Minister’s authority in recent weeks is leading to a bit of a problem with government bandwidth? I ask this because it is really easy to talk tough about Article 16, at least when he is here, but not if the Minister and the Prime Minister do not have the backing of the entire Cabinet to see through the consequences, which would be further damage to international relationships and possibly a trade war. Is he confident that any of his Cabinet colleagues will be with him in the trenches if he leads us into further disputes?

[Lord Frost (Con)]

My Lords, the Cabinet and the Government stand fully behind the policy that we set out in the Command Paper in July, which is a very good compromise policy that we still hope to negotiate. We have made it clear that a negotiated outcome is the best one, but that policy paper, which we all stand behind, also makes it clear that Article 16 is a legitimate and useful tool if necessary. That remains the Government’s position.

Protocol on Ireland/Northern Ireland: Court of Justice of the European Union

Lord Frost Excerpts

Thursday 18th November 2021 Lords Chamber

[Lord Dubs]

To ask the Minister of State at the Cabinet Office (Lord Frost) what plans Her Majesty’s Government have to involve the Court of Justice of the European Union in dispute cases regarding the Protocol on Ireland/Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, the Government have proposed changes to the governance arrangements in the protocol involving the Court of Justice of the European Union. The court’s jurisdiction in settling disputes under the protocol is currently limited, of course, to those covered by the second sub-paragraph of Article 12(2), Article 5 and Articles 7 to 10 of the protocol. In other withdrawal agreement disputes, including those under Article 16, cases are ultimately resolved by arbitration, with a role for the court only where disputes raise questions of interpretation of EU law.

[Lord Dubs (Lab)]

My Lords, is the Minister aware that he has created an impression that his position is softening on many of these issues? A German journalist asked me bluntly after the noble Lord’s 10 November Statement, “Is it true that Lord Frost is moving from his earlier position?” Would the noble Lord care to comment?

[Lord Frost (Con)]

My Lords, the answer is “no”. We are trying to reach an agreement. That has always been our position; it was our position in July and it is now. I suggest that our friends in the EU do not interpret the reasonable tone that I usually use in my discussions with them as implying any softening in the substantive position.

[Baroness Foster of Oxton (Con)]

My Lords, despite bordering four EU countries and being part of Schengen and the single market, with an excess of 120 bilateral agreements, Switzerland does not permit EU law to override Swiss law. Therefore, the ECJ cannot be the final arbiter of any dispute. As a third country, as the UK now is, can my noble friend reassure the House that there will be no role for the ECJ in Northern Ireland or across the UK and that the provisions of the trade and co-operation agreement will be interpreted in line with international law, including the 1969 Vienna Convention on the Law of Treaties, as agreed?

[Lord Frost (Con)]

My Lords, my noble friend asks a very good question. I assure her that there is no role for the court of justice in the trade and co-operation agreement. There are provisions in that agreement which make it very clear that interpretations by one court cannot bind the courts of the other and that they are to be interpreted in line with the normal provisions of international law. That is 100% unambiguous. Regarding the withdrawal agreement and the protocol, we know that we have a problem. Most people would regard it as unusual for disputes between two parties to be solved in the court of one of the parties.

[Lord Kerr of Kinlochard (CB)]

My Lords, the Minister baffled the House earlier with his answer to the question asked by the noble Baroness, Lady Chapman. He is now baffling the House again. The conceptual core of the protocol is that the EU agrees that Northern Ireland may remain in the single market. The necessary concomitant to that is that the ECJ must have a role. I agree that we should not be shocked by the Minister’s line. He told us in his speech in Oxford during October that difficulties with the protocol come not from the way that it is being implemented but from the way that it was constructed. Coming from its constructor, that could seem a curious statement, but that is what he said, and that is what he goes on saying.

If the Minister insists on attempting to remove the court of justice, which is central to the conceptual core of the protocol and the deal struck by him, he cannot do it under Article 16, because, as he has just explained, that is simply about trade safeguards. Under what powers would he do it? He has the powers by regulation under the withdrawal Act to act in a way that is consistent with Article 16 to act on trade measures, but he has no power to withdraw the court of justice. Are we back to primary legislation and a specific and limited breach of the treaty and international law? If so, I doubt that the House will agree.

[Lord Frost (Con)]

My Lords, I cannot believe that I have really baffled the noble Lord, with his deep knowledge of EU affairs that is much greater than mine. The Government will set out the basis on which we would use Article 16 if and when that eventuality arises. We hope that it will not, but obviously we will be clear when and if we reach that point. Of course, it is well understood that the court has a role as the final arbiter of EU law. We do not seek to change or challenge that. What is not working is the role of the court as the arbiter of disputes between the two parties, which is unusual.

[Lord Liddle (Lab)]

My Lords, I am trying to follow the Minister’s answers as well, and with some difficulty. In answer to the question on the Northern Ireland protocol, he spoke about changing the arrangements. Does this mean that he is no longer arguing for removal of the court of justice’s jurisdiction over the European single market, which, if we are to keep no border in Ireland, must still apply in Northern Ireland? If we keep the border open, does he agree that he must accept some role for the court of justice?

[Lord Frost (Con)]

My Lords, I cannot add very much to what I said earlier, which is that the EU defines the court of justice as the final arbiter of what EU law means. We do not challenge that and cannot do anything about it. For as long as EU laws apply in Northern Ireland, no doubt the court will continue to assert that right, but that is not the same as saying that it is reasonable for disputes to be settled in the court or for infraction processes to be launched by the Commission, as they already have been in this context. It is the settlement of disputes that is the difficulty.

[Lord Newby (LD)]

The noble Lord just said that the role of the court is not working; as far as I am aware, the court has not yet been asked to adjudicate on anything in terms of the operation of the protocol. If that is correct, why was the Minister so prepared to sign up to a role for the court in 2019, when he is now implying that it is a constitutional outrage?

[Lord Frost (Con)]

My Lords, it is true that the dispute has not reached the court yet but, nevertheless, an infraction process was launched in March. The Commission’s launch of an infraction process, seemingly on a hair trigger, has created many of the concerns that we now have about the court. That sort of process is appropriate for member states, with all the checks and balances that exist when you are a member state. As we can now see from the way that it is being used, it is not appropriate for this country, of which Northern Ireland is a part and which is not a member state of the EU.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am not the only one scratching my head as a result of these exchanges. Can the Minister help us by outlining what the benefit to the UK position of triggering Article 16 would be? Surely it would only set the clock ticking and increase the pressure, while he would be negotiating on the exact same issues with the exact same people, probably in the exact same rooms. What do we gain by triggering Article 16?

[Lord Frost (Con)]

My Lords, Article 16 is a safeguard. It changes reality because it enables us to safeguard, within the provisions of the protocol, against certain effects of the way that it is currently being implemented and working out. Of course, it begins a new and slightly different phase if Article 16 is used, but it also creates a new reality and safeguards against some of the difficulties that we currently find. That is why it is such a relevant provision.

[Lord Cormack (Con)]

Naturally I wish my noble friend success in his negotiations, but as he bears some responsibility for the protocol, can I urge him not to rule things in and out from the Dispatch Box, but to negotiate as a trained diplomat, which he is—calmly, gently and with the aim of coming to agreement with our friends and neighbours?

[Lord Frost (Con)]

My Lords, my noble friend is right, as always. It is good to negotiate calmly and find the best possible agreements between two parties. That applies to both sides. I urge the EU not to overplay the significance of using Article 16, as perhaps it has in the last couple of weeks. It is a legitimate provision within the protocol which we are discussing, and can as such be used if the situation arises.

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, the time allowed for this Question has elapsed.

Retained EU Law

Lord Frost Excerpts

Thursday 18th November 2021 Lords Chamber

[Baroness Ludford]

To ask Her Majesty’s Government, further to the Statement by the Minister of State at the Cabinet Office (Lord Frost) on 16 September (HL Deb, col 1533), whether the review of the substantive content of retained European Union law has commenced; and what engagement they are planning to undertake with stakeholders, including those in Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, I have now launched two reviews: one into the substance of retained EU law and one into its status in law. As regards the substantive review, departments have been asked to review and map the content of retained EU law that falls within their responsibility in order to be clear where the heaviest concentrations are and what the effect is. Departments are responsible for consulting stakeholders as appropriate in order to complete this task, including, of course, those in Northern Ireland.

[Baroness Ludford (LD)]

My Lords, the freezing of EU law in domestic law at the end of last year delivered legal certainty and stability, including for the position of Northern Ireland in relation to the EU single market. Will the Government take great care in unravelling that? How do they intend to implement any change to retained EU law? Will they commit to doing so through primary legislation only?

[Lord Frost (Con)]

My Lords, as regards Northern Ireland, we will of course proceed with an eye on stability and with predictability, as we have made clear on many occasions. On retained EU law more broadly, I noted in my Statement on 16 September that many such laws had not been discussed or agreed to in this Parliament in any way during the course of our EU membership and any amendments to those laws in future would need to reflect that reality.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the Minister visited Northern Ireland yesterday and the day before and I understand that he met various people. Who were those stakeholders? Did he discuss this issue about the review of retained EU law? Did he also discuss the need, in his own words, to provide political stability and sustainability and the need to promote the benefits of the protocol through access to the EU single market and the UK internal market?

[Lord Frost (Con)]

My Lords, I indeed met a wide range of people in Northern Ireland yesterday, as I always try to. It is fair to say that I heard a lot of concerns about the way the protocol is being implemented. I heard some concerns about the democratic legitimacy of laws being imposed without consent and a great wish to do something about the current situation, which is what we are trying to do.

[Baroness Smith of Newnham (LD)]

My Lords, in answering my noble friend Lady Ludford, I am not sure that the Minister actually dealt with the question of whether any changes to retained law would be dealt with through primary legislation. Could he possibly try again? He suggested that the retained law had not necessarily been scrutinised by Parliament before and that any changes needed to reflect that reality. But surely, if we are taking back control, this House and the other place should be able to decide any changes to retained law. If so, how are the Government Whips going to find parliamentary time to do so?

[Lord Frost (Con)]

My Lords, the best way I can answer the question is to refer back to what I said on 16 September, when I referred to the democratic deficit issue of such law, and note that

“we will look at developing a tailored mechanism for accelerating the repeal or amendment of this retained EU law in a way which reflects the fact that, as I have made clear, laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country.”—[Official Report, 16/9/21; col. 1533.]

There are various ways of achieving that end, and that is what we are working on.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Lord, Lord Lilley, is not present, so I call the noble Lord, Lord Dodds of Duncairn.

[Lord Dodds of Duncairn (DUP)]

My Lords, a bonfire of regulation or a selective shredding of EU retained law here in Great Britain will of course not apply to Northern Ireland because we still remain under EU control and EU laws and, as the Minister has said, with no democratic input whatever from anyone elected in Northern Ireland. How is Northern Ireland going to remain competitive or even on a level playing field if Britain diverges from it continuously, not just now but over years and decades to come, unless the protocol is changed?

[Lord Frost (Con)]

The noble Lord raises a very good question. It is indeed one of the difficulties with the protocol, as constructed, that EU law, in areas of the single market for goods, is imposed without any agreement by the institutions in Northern Ireland. That is a situation we are seeking to remedy in the negotiations I am currently conducting.

[Baroness Chapman of Darlington (Lab)]

My Lords, the Minister is being rather slippery in his responses to questions about retained EU law. The reason I say this is that we were promised—in the other place at least and, I am sure, in here too—that changes to retained EU law would be subject to primary legislation, and I can remember vividly Secretaries of State Raab, Barclay and Davis saying in terms at the Dispatch Box that this would be the case. Is the Minister now overriding that commitment?

[Lord Frost (Con)]

A number of things have happened since those commitments were made, including a general election, which we won with a clear set of policies. Our policy on this matter was as I set out on 16 September in my Statement, and we are considering the best way of delivering that policy.

[Lord Wallace of Saltaire (LD)]

I recall an earlier review of the balance of competences between the UK and the EU. Does the Minister recall that one of the most prolific submitters of evidence was the Scotch Whisky Association, of which he was then, I believe, director? All of them argued in favour of the advantages of the single market and shared regulation. Can he explain when, why and how he went through a damascene conversion from the evidence that was then submitted to his current extraordinary ideological position?

[Lord Frost (Con)]

My Lords, actually, I was not CEO of the Scotch Whisky Association at the time; I was an official, working on the very review the noble Lord refers to. The policy of the Government at the time was to remain in the European Union, and therefore it is not surprising that the review reached that conclusion.

[Baroness McIntosh of Pickering (Con)]

Will my noble friend ensure that any such review of retained EU legislation will be based on fact and science? He will recall that when the EU nitrates directive was adopted, the bar was set very high to prevent any recurrence of blue babies. There has been no blue baby for 400 years. Why then are we actually extending the nitrates provisions and making them even more stringent on our farmers, when we should be reducing the restrictions?

[Lord Frost (Con)]

My Lords, I am not familiar with the detail of the points my noble friend raises. The general point that the EU tends to legislate in a highly risk-averse way, which has economic consequences, is a good one, and we will obviously have it in mind as we take this review forward.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, one of the key tenets of Brexit was the removal of substantive undemocratic layers above sovereign lawmaking to enhance democratic accountability. But does the Minister recognise that this control over laws is not yet a real, live felt experience for voters? If so, does he appreciate that the retained EU law review is an opportunity for a democratic engagement with voters—not stakeholders—about what they believe should be prioritised in the legislation, and that it should not be left to committees?

[Lord Frost (Con)]

My Lords, the noble Baroness makes an extremely good point, and it is our wish to widen this debate as far as we can. One of the ways of doing it, we hope, will be the standing commission on deregulation, which I referred to in my Statement of 16 September, on which I hope to be able to update the House fairly shortly.

[Baroness Hoey (Non-Afl)]

My Lords, the Minister talks repeatedly about stability in Northern Ireland, which is very important. How can he possibly think there will be stability in the future if Northern Ireland, under all these retained laws, will not get the benefit of them? Will he say now whether he actually contemplates Northern Ireland remaining under the EU’s VAT rules, for example?

[Lord Frost (Con)]

My Lords, we set out our position in the Command Paper of 21 July on VAT and many other points. Having two different systems of lawmaking on important points within the United Kingdom is likely to build up tension and divergence and create difficulties over time. We are trying to design a system in these negotiations that will resolve that. I wish we were making a bit more progress, but we will keep trying.

EU Relations

Lord Frost Excerpts

Wednesday 10th November 2021 Lords Chamber

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, with the leave of the House, I will now make a Statement to update the House on various recent developments in our relationship with the European Union. The Statement will also be made in the other place in due course by my right honourable friend the Paymaster-General.

As noble Lords will know well, we have two principal agreements with the EU: the trade and co-operation agreement and the withdrawal agreement. The first—the biggest and broadest bilateral trade agreement in the world, freely agreed by both parties—is working well. Teething problems have largely been dealt with, business has adjusted well to the new relationship, and trade is getting back to normal. Both parties have agreed data adequacy. We are reaching complementary agreements—for example, the 17 bilateral aviation agreements that we have reached. The substructure of specialised committees is functioning; almost all the committees have now met, the trade partnership committee will meet on 16 November, and we expect a further partnership council in December.

There are, however, two problem areas within the TCA. The first is fisheries and the second is Union programmes, notably the Horizon science research programme. On fisheries, since we received the necessary applications in June, we have been engaged in technical discussions about licensing with the Commission, also involving the Governments of Guernsey and Jersey and the French Government. As is known, we have granted 98% of applications from EU vessels to fish in UK waters—nearly 1,800 licences in total. The remaining 2% have not provided the data needed to access our 6 to 12 nautical mile zone. As we have said consistently, we are ready to consider any new evidence to support the remaining licence applications. Indeed, we granted three more licences on 14 October because the Commission sent new evidence, then another on 26 October. We set out the full latest figures to Parliament on 3 November. Licences for Jersey and Guernsey waters are assessed by the relevant authorities in Jersey and Guernsey, not the UK Government. However, we support the approach they have been taking, which has been entirely in line with the provisions of the TCA.

We have therefore been disappointed that, faced with these facts, the French Government felt it necessary to make threats which were disproportionate, unjustified and would have been a breach of the trade and co-operation agreement. I welcome France’s deferral of the implementation of these measures; I hope they will take them off the table permanently. I spoke yesterday to my friend Clément Beaune in the French Government following our talks in Paris on 4 November. We obviously have different views on the fisheries question, but it is certainly our intention to keep working to get to an outcome which is fair to those who are genuinely entitled to fish in our waters.

The second difficulty I mentioned is that of the Horizon science research programme and some other related programmes. We agreed to participate in this in the TCA, and to pay a contribution, which is likely to be £15 billion over seven years. The TCA is clear that the UK “shall” participate, and the relevant protocol “shall” be adopted. That is an obligation. If it were to become clear that the EU did not intend to deliver on that obligation—and it has not done so so far—or simply to delay sine die, we would regard the EU as in breach of Article 710 of the TCA. We would of course put together a domestic research programme for our own scientists and universities in its place. But it is in neither ours nor the EU’s interests to get to that point, and much the best way forward is for the EU instead to finalise our participation as a matter of urgency.

I now turn to the other agreement, the withdrawal agreement, which of course includes the Northern Ireland protocol. We have been in discussions with the Commission on the changes needed to that protocol since we published our Command Paper in July. Our position was set out then in full and remains unchanged. On 13 October, the EU published four non-papers with proposals on medicines, customs, sanitary and phytosanitary matters—or SPS—and the engagement of Northern Ireland stakeholders in the operation of the protocol. Around the same time, we transmitted a new legal text to it, operationalising the proposals set out in the Command Paper in legal form. Our immediate view of those non-papers was that, while the EU’s proposals did not go as far as our Command Paper, nor cover all the areas that we believed needed to be addressed—in particular, the protocol’s untenable governance arrangements—they were worth discussing. We were keen to see if its proposals would at least reduce trade friction in the way that it claimed.

Since then, we have been in intense discussions with the European Commission. I have met Vice-President Šefčovič every week for the last three weeks in Brussels and London, and we will meet again on Friday as part of this week’s talks. The aim has been to assess whether it is possible to close the substantial gap between our positions and secure a consensual, negotiated resolution. So far that has not been possible. This is, at least in part, because the Commission’s proposals would not do enough to make the protocol sustainable for the future or even deliver what they have claimed. I have heard that view also expressed by many businesses I have spoken to in Northern Ireland and Great Britain.

If the talks do in the end fail, we will of course publish in full our assessment of the EU’s proposals and set out why they fall short of a durable settlement, but we will not do that until we have exhausted all the negotiating possibilities. For now, I wish to preserve the integrity of the negotiations and to remain positive. Accordingly, we continue to work to see whether the EU position on these issues can yet develop further, and whether it is possible to find a way to deal with the other important matters necessary to put the protocol on a sustainable footing, such as the interlinked issues of the imposition of EU law and the Court of Justice, state aid, VAT, goods standards, and so on. That work will continue in the talks under way this week.

In my view, this process of negotiations has not reached its end. Although we have been talking for nearly four weeks, there remain possibilities that the talks have not yet seriously examined, including many approaches suggested by the UK. So there is more to do and I certainly will not give up on this process unless and until it is abundantly clear that nothing more can be done. We are certainly not at that point yet. If, however, we do in due course reach that point, the Article 16 safeguards will be our only option.

We have been abundantly clear about this since July, when we made it clear that the tests for using Article 16 were already passed. Nothing that has happened since has changed that. I can reassure noble Lords that, if Article 16 were to be used, we would set out our case with confidence and spell out why it was wholly consistent with our legal obligations. We would also be ready to explain that case to any interested party, not just the signatories to the treaty but those with a broader interest in relations with the EU and the UK.

However, the EU seems to be arguing something different at the moment. It seems to be claiming that it would be entirely unreasonable for the British Government, uniquely, to use these wholly legitimate safeguard provisions within the treaty, designed precisely to deal with situations like the current one. It also suggests that we can only take that action at the price of massive and disproportionate retaliation.

I gently suggest that our European friends should stay calm and keep things in proportion. They might remind themselves that no Government and no country have a greater interest in stability and security in Northern Ireland and in the Belfast/Good Friday agreement than this Government. We are hardly likely to proceed in a way that puts all that at risk. If the EU were to choose to react in a disproportionate way and decide to aggravate the problems in Northern Ireland, rather than reduce them, that is of course a matter for them. At that point, of course, we would be entitled to come to our own judgment about how much value we could attach to their commitment to supporting the peace process and the best interests of the people of Northern Ireland, as against protecting their own interests.

This Government will always proceed in the best interests of Northern Ireland and, indeed, the whole of our country. That means, one way or another, working towards a balanced arrangement in Northern Ireland that supports the Belfast/Good Friday agreement rather than undermining it. We would much rather that others joined us on that journey, rather than making it more difficult. I hope that, in the short number of weeks before us, the Commission and the EU member states will look at what we have in common, look at our collective strategic interests as western countries and help us to find a stable and sustainable solution so that we can all move on. There is still a real opportunity to turn away from confrontation, move beyond these current difficulties and put in place a new and better equilibrium. I urge everyone to take that road—the road not of confrontation but of opportunity—for the sake of everyone in Northern Ireland and beyond.

--- Later in debate ---

[Lord Newby (LD)]

My Lords, I thank the Minister for making the Statement. However, just as he refers to the production by the EU of “non-papers”, it seems to me that this is largely a non-Statement. It contains nothing new and largely consists of yet more sabre-rattling—something that, I have to accept, the Minister excels at. He says that the trade and co-operation agreement is working well. According to the OBR, its effect is that our GDP will be 4% lower than if we had remained in the EU, so I suppose we should be very grateful that it is not working badly.

Underlying all the issues to which the Statement refers are two substantive problems for the Government. The first relates to trust. As the Minister made clear in his Lisbon speech, the UK is widely distrusted as a reliable partner. As a result, everything becomes more difficult, and what should be relatively small, easily resolvable issues, such as the licensing of fishing boats, become potential major flashpoints.

The second is that there exists at the heart of the Northern Ireland problem the irresolvable issue of where the EU-UK trade boundary is set. The Government in reality do not want a boundary at all when it comes to GB trading with Northern Ireland but want one when it comes to trading with the EU. The Good Friday agreement means that they cannot possibly have this best of both worlds. In seeking to achieve that impossibility, the Government are, understandably, running into problems, but it is completely disingenuous for the Minister to protest about unintended consequences of having a border down the Irish Sea when the Government’s own impact statement at the time set out in major detail exactly what those deleterious impacts would be. The Minister negotiated the deal. I cannot believe that he did not understand the consequences at the time. Did he think that it would be possible to live with them, or did he even then think that he could renege on the deal once the main trade and co-operation agreement had been signed? Either way, he was less than straightforward in presenting the deal as a Great British negotiating success.

On the operation of the protocol, the EU has made very substantive concessions which appear to offer the prospect of a resolution of the main operational problems. In these circumstances, repeatedly to dangle the prospect of Article 16 in front of the EU just looks like a provocation which will make the negotiations harder rather than easier. At the weekend, in commenting on the Article 16 threat, Sir John Major said that it was “colossally stupid” and “un-Conservative”. In part, he said this because it would threaten a trade war with the EU, a prospect which Simon Coveney again raised at the weekend, which would indeed be colossally stupid. But in part also, he said it because it undermines the Government’s central claim that they “got Brexit done”. Triggering Article 16 would lead to chaos and confusion, when businesses, not least in Northern Ireland, want stability and continuity. It would be the opposite of Brexit having been done. How, therefore, does the Minister rebut Sir John’s comments? How does he respond to the point made by the noble Baroness, Lady Chapman, that the majority of people in the Province do not believe that triggering Article 16 is in their best interests or that the potential involvement of the European Court of Justice is a red line—it is not; it is for the Minister, but it is not for the people in Northern Ireland.

It is overwhelmingly in the national interest to deal unemotionally with the problems in the operation of the protocol on the basis of the proposals now on the table. Can the Minister assure the House that he will finally put his sabre away and just get back to straight- forward negotiating?

[Lord Frost (Con)]

My Lords, I thank the noble Baroness, Lady Chapman, and the noble Lord, Lord Newby, for their reactions to my comments. I will try to deal with the points they raised systematically by subject.

On the initial point raised by the noble Baroness about the timing of the Statement, international business has its own timetable. Unfortunately, there are meetings and contacts the whole time which shape outcomes. It was our view that this was the most sensible moment to give a clear update in the best knowledge of the situation. We will continue to update the House at the right moment to keep it up to date with developments.

On the question of whether the TCA is working well, I think it is. That there are disputes over fisheries and Horizon does not change the fact that this vast agreement, the biggest anywhere, has come into effect with remarkably little difficulty. I have expressed before my scepticism—although I recognise that people can have different views—about some of the predictions of the economic effect of Brexit. I continue to be sceptical about the particular figure referred to by the noble Lord; I think we will see real life set this out in due course.

On fisheries, I thank the noble Baroness for recognising that the position that the French Government have taken is not reasonable; I do not think it is. That we are dealing with this question quite late in the year and the timetable is tight is of course because the French Government did not send the necessary paperwork for the applications to the Commission until June, half way through the year, and most of the evidence we needed arrived only in September. So, what is represented as a very long discussion is in fact quite a short one; most of the 1,800 licences that I referred to were given before the start of this year or in the first week of the year. We are doing our best and we proceed according to the evidence. Discussions are continuing this week and I am sure we will get to a fair outcome.

On Horizon, obviously, contingency planning takes place for all eventualities. We had hoped that it would not be needed, and I still hope that it will not be needed. I am very happy to set out in writing where things stand on this subject, because it is of huge importance to a large number of universities and research institutes, not just in this country but across Europe, which have an interest in collaborating with us. I repeat that much the best thing is if we can see that the treaty is delivered on, we are able to join and things can proceed as we expected. I still hope that can happen.

On Northern Ireland, there is a lot to say and some of it has been said before, but I repeat that, in our view, Article 16 is not inevitable—I want to be clear about that. It is much better to come to a negotiated agreement; that is the best way forward for stability, sustainability and prosperity in Northern Ireland. That is what we are working to do, but the safeguards are there if it is not possible to deliver that outcome. I am not concluding at the moment that that outcome is not possible; I think it is, and we are working hard to deliver it. Obviously, we look at the real-world situation in Northern Ireland and the stark division of opinion that is clear from the polling, and that shapes the situation we are dealing with. We think it is absolutely legitimate to use safeguards which were put in place for exactly this situation if that is the best way of supporting stability in Northern Ireland. However, let us see whether we can avoid that situation.

On legal advice, I think the noble Baroness would not expect me to disclose the details of legal advice and how the work of the Attorney-General is done, but I hope that she agrees that we would want her to have the best possible advice, reflecting the full range of opinion on these very sensitive and unprecedented questions. I think that is a reasonable expectation.

On the negotiation process, I do not think it is true that we—the UK and the EU—are growing apart in the negotiations. We have inched a little bit closer; there has been some movement, and that is good. We just are not moving together quickly enough, and the gap is still an extremely wide one. However, there has been some incremental progress. It was our hope that that could have been quicker and more substantive, but we are trying.

I do not think it is true that, as the noble Lord, Lord Newby, said, the EU proposals offer a satisfactory solution to the problem that we now face. As I said, we will set out our view on that in detail in due course. For example, they do not eliminate a single customs declaration for any good moving into Northern Ireland. The famous 50% figure is actually a 50% reduction in the number of fields in the customs declaration, with most of the significant ones still remaining—it is not a 50% elimination of process. On medicines, we still do not have a situation that deals with the reality of the fact that the regulator in Northern Ireland is not the MHRA but the EMA, so there is clearly a risk of divergence and not being able to deliver medicines to the whole country—and we have to deal with that. So they make progress, but they do not take us the whole way there.

To repeat, we would like to get to an agreement. We are working hard to get to one, and we talk to all ranges of Northern Ireland opinion. I spoke only yesterday to the First Minister and the Deputy First Minister to update them on the talks, and we continue to proceed in a way that we hope will make the best progress. I do not think that the threats that are swirling around of a reaction to Article 16 are in any way helpful, but obviously that is the business of the European Union.

I conclude that we want to find a solution to this. It is obvious that the protocol is not the only possible solution to the set of problems that are presented to us in Northern Ireland. There are other solutions and possibilities—we set them out in our Command Paper—and we still think that that would be the best way forward to provide a sustainable, stable solution in everybody’s interests in Northern Ireland.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his Statement. Last week, in our protocol committee we took evidence from the University of Liverpool, which produced the results of its survey. That survey was quite clear: that issues to do with Covid and health waiting lists were more important to the people of Northern Ireland than the protocol. As somebody who lives there, I can say that nobody talks about the protocol that I can hear of. Only this morning, Stephen Kelly from Manufacturing NI said that there were many benefits from the protocol. It is very important that there is a negotiated solution to the protocol. Does the Minister agree that invoking Article 16 now would not solve any economic or political problem and that such a step would undermine political stability in Northern Ireland, something that was very hard-won on all sides?

[Lord Frost (Con)]

My Lords, I have looked very carefully at the polling produced by the University of Liverpool. It is inevitable that at the top of people’s agenda, in almost any poll, would be questions such as health, education and day-to-day issues. I do not think that that distracts from the fact that the protocol is self-evidently a major issue in Northern Ireland’s politics. What I took from that and other polling I have seen is the high level of division on the question of the protocol. There is a very clear division in most polls about support for the protocol or a wish to change it. In the environment of Northern Ireland, that very stark division is what makes things difficult. Obviously, I do not agree that triggering Article 16 would undermine stability. We would do it only if it was necessary to support stability in Northern Ireland. It is a safeguard and should be seen in that context.

[Lord Cormack (Con)]

Will my noble friend remember that wonderful quotation on Harold Macmillan’s desk that

“Quiet, calm deliberation disentangles every knot”?


Will he go very carefully indeed? We have only to look at today’s Order Paper, with business on Bosnia-Herzegovina and the Question that we had earlier on Russia and Ukraine, to realise that, daily, the world is getting a more dangerous place. The worst thing that we can do is to fall out with long-standing friends and neighbours in Europe. We must work together with them. Will my noble friend do everything he can to lower the temperature and increase the amity?

[Lord Frost (Con)]

My Lords, obviously I agree with my noble friend’s question. I said in my Statement that the West needed to think about what it had in common, for exactly these reasons—and that is really important. Of course we want to be friends and have friendship with our European neighbours; that is absolutely clear. But that does not mean that we must accept every proposition that they put forward. We have our own interests and we need to protect them, in Northern Ireland as well as elsewhere. I think we try to proceed with quiet calm, as my noble friend says. It is not us that are making threats about the TCA and not us that are making threats of retaliation against France.

[Noble Lords]

Oh!

[Lord Frost (Con)]

I think there is a difference between a legitimate provision in a treaty, which is Article 16, and threats to do things outside the treaty, which are the threats that have been made to us in the last few weeks. I think both sides need to look at this, retreat from the positions that the EU and France have put out, and try to find that quiet calm to which my noble friend refers.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, further to the question asked by the noble Lord, Lord Cormack, the main purpose of today’s Statement seems to have been to reinforce the threat to trigger Article 16. How does the Minister think that such blackmail tactics—because that is what they are—will make a negotiated settlement more likely?

[Lord Frost (Con)]

I repeat what I have already said: threats have been made by both sides. Our position is unchanged; I made that clear in the Statement. Our position is to try to find a negotiated settlement. That is what we would prefer to do. Article 16 is a legitimate instrument in the treaty, which has been, albeit briefly, already activated by the EU and withdrawn. If we think that Article 16 is the best way of preserving stability in Northern Ireland, obviously it is an instrument that we will use. However, I repeat, it is not our preference.

[Lord Robathan (Con)]

My Lords, earlier today we were discussing the question of the hereditary Peers’ by-elections and how it might diminish the opinion of the great British public of this House. Actually, the great British public neither knows nor cares about it, but never mind. Does my noble friend the Minister consider that what does diminish the standing of this House in the eyes of the general public is the non-stop criticism in this House of his position—which is a very difficult position—from people on the other side who have yet to reconcile themselves to the fact that the British public voted to leave the European Union? Does he find that this sniping and nit-picking is helpful to his position, or does he find that perhaps it gives succour to his negotiating partners in the EU, who believe that this may represent somebody— whereas actually it represents none of the British people at all?

[Lord Frost (Con)]

My Lords, obviously I very much agree with the thrust of the question. There is a lot of commentary about the situation in Northern Ireland that does not engage with the reality and facts of the question but is a sort of proxy fight about a question that is settled. It would certainly make our job easier if we could look at the national interest questions that are at stake here, and at the need to provide stability and prosperity in a very troubled part of our country, and make our position in trying to defend that easier to push forward.

[Lord Morrow (DUP)]

The Minister has said here today that the talks are not at an end yet, but I am sure that he is very conscious—as we are, back in Northern Ireland—that every day the talks go on costs the Northern Ireland economy countless millions of pounds. I hope that he takes that into account. The noble Lord, Lord Newby, said that the people of Northern Ireland do not want Article 16 triggered. I will tell the House what Northern Ireland does not want: any trade barriers between Northern Ireland and GB. That is what it does not want.

Further, the protocol disrespects the very delicate constitutional balance—this is at the heart of the agreement, we are told. It undermines Northern Ireland’s relationship with the rest of the United Kingdom and it is not acceptable to any of the unionist parties in Northern Ireland. I ask this House to take cognisance of that. Why is it that only one side of the community has to be respected and not the other side? I ask the Minister: as the conditions now exist very clearly for the triggering of Article 16, why has it not been triggered?

[Lord Frost (Con)]

My Lords, I think the exchanges that we have had in the last few minutes show the point I was making earlier: that there are in fact starkly divided views in Northern Ireland about these questions. That is why it is impossible to make an instrument such as the protocol work effectively, in the way that the EU insists that it be implemented, when those very stark divisions exist. We need to find a solution that everybody in Northern Ireland can get behind and which supports the delicate balance in the Belfast/Good Friday agreement, which was so painfully negotiated and which is the key to peace in Northern Ireland.

I very much sympathise with the points that were made on timing. Trade diversion is obviously happening every day and is very much on our mind, but we think that the responsible thing to do is to do everything we can, push as hard as we can and explore every possible avenue in and around the talks to see whether we can find an agreement that everybody can get behind. That will be my aim until I have concluded that it is impossible—and we are not at that point yet.

[Lord Purvis of Tweed (LD)]

My Lords, page 58 of the OBR report states that UK GDP will be 4% lower as a result of the agreement negotiated by the noble Lord, Lord Frost. Page 59 of the OBR report states that trade—both imports and exports—is now 15% lower. The Minister said that he was “sceptical” of this and would be presenting his own figures. The Chancellor’s entire Budget and spending review were based on the OBR figures—so should we all now have a high degree of scepticism about the Chancellor’s statement and spending review? Will the Minister join us in scrutinising that set of figures, to show that we should not believe them?

[Lord Frost (Con)]

My Lords, I do not think that I said that I was planning to present my own figures in this respect, merely that I was sceptical about the many judgments that had been made officially about the state of the economy in 2030—which I think is the 4% judgment—which is a long way out, and many things can happen, including policy changes that we will make to ensure that that situation does not develop. That is the way that I look at this problem.

[Lord Liddle (Lab)]

My Lords, does the Minister accept that we are not here debating Brexit; we are debating his threat to detonate the Northern Ireland protocol in an agreement that he negotiated and signed? This has nothing to do—as the noble Lord, Lord Robathan, claims—with Brexit itself. Does he also recognise that while unionist sensibilities of course have to be recognised, we are dealing here with the long and painful history of the Irish question? There was not a single mention in his Statement of relations with the Irish Republic and how many people in the Irish Republic believe that this is a threat to the Irish Republic’s place in the single market and an attempt to force it out of it. What is his reaction to that? I urge him to stop posturing and get on with negotiating. The EU has moved a long way; how much has he moved?

[Lord Frost (Con)]

I thank the noble Lord for his advice; I am certainly taking it, in that we should carry on negotiating—that is what we are trying to do, including this week and, I hope, beyond it. I repeat that Article 16 is a legitimate provision within the protocol. It has already been exercised once, and we cannot be in a position where it is not possible to exercise a legitimate provision in the protocol. That is simply not a reasonable position to take.

On the question of Ireland, we have made clear—I have said in this House on a number of occasions—that we do not wish in any way to threaten Ireland’s place in the single market. Nothing that we have proposed would do that. We have proposed measures that would protect the single market while allowing trade to flow freely throughout the United Kingdom. We have no wish to do that and nothing in what we have proposed can be interpreted as such; I want to be absolutely clear on that point.

[Lord Empey (UUP)]

My Lords, I hope that the noble Lord succeeds in his negotiations but, irrespective of how many times he triggers Article 16, should that happen, it in no way replaces the protocol. In other words, there is the feeling in some unionist quarters in Northern Ireland that if we trigger Article 16, we will get a new deal. We are not getting a new treaty or a new protocol; we are merely amending it. It is a negotiation within it, so it is a mirage that triggering Article 16 is a solution.

Will the Minister also consider the fact that those of us who live there and have our political background there are, effectively, totally excluded from this process when we have solutions to put in place, based on the Belfast/Good Friday agreement, which would avoid a lot of the problems that we have currently? Would he be kind enough to address that and confirm that no triggering of Article 16 replaces the protocol?

[Lord Frost (Con)]

The noble Lord makes an extremely important point. I have said before, and say again, that Article 16 is not an on/off switch for the protocol. It is not a sort of self-destruction mechanism for the protocol; it is a safeguard. There are constraints on what can be done with a safeguard. The legal limits of it are to be defined but, if you use Article 16, it is clear that you are left with a protocol with safeguards operating. That is why we find it so difficult to really understand the volcanic reaction that we get to the suggestion of using the safeguards provisions. It is a safeguard, and it is designed to support stability and ensure that the protocol fulfils its task of supporting the Belfast/Good Friday agreement. If we do use the safeguard and Article 16, that will be the spirit in which we do so.

[Baroness Neville-Rolfe (Con)]

My Lords, I am grateful to my noble friend the Minister for giving us an update, and for doing so in prime time, not at 7.30 pm. I also refer to the helpful reply that he gave to the noble Baroness, Lady Chapman of Darlington, about contingency arrangements on R&D. Could he talk more widely about contingency planning in the event that Article 16 had to be triggered? What conversations have he or his officials been having with interested businesses and Northern Ireland interests, about, for example, the impact of any tariff or bureaucratic changes that the EU might implement here or on the island of Ireland, and what we might do by way of response?

--- Later in debate ---

[Lord Frost (Con)]

I thank my noble friend for the question. We are beginning that process. Obviously, we do not wish to pre-judge whether Article 16 is used and, as I said, we want to proceed with predictability, certainty and clarity, setting out the case if we do use Article 16, so there will be time to adapt and to deal with any measures if it comes to that point. We wish to provide legal certainty, clarity and the ability to deal with the situation and not to produce instability with sudden changes or surprise mechanisms. Predictability, clarity and certainty are the watchwords.

[Lord Adonis (Lab)]

My Lords, has the Minister noted that polls now show a lead of about 10% for Sinn Féin in Northern Ireland and the Republic of Ireland? Does he think that that might have something to do with his Brexit policy over the last few years? How much higher does he think that lead might go if he, as my noble friend Lord Liddle says, detonates the Northern Ireland protocol, triggers Article 16 and begins a long trade war with the European Union?

[Lord Frost (Con)]

It is probably not helpful for me to get into speculating about what polls may or may not show about outcomes months or years from now. To be honest, I am not sure there is a very direct connection between our Brexit policy and the rise of Sinn Féin in Ireland, which I think is due to quite a wide range of other factors and has parallels with what is happening across Europe. However, I defer to the noble Lord’s judgment; he has been to the Sinn Féin conference and I have not.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, the protocol continues to damage the economy and political stability in Northern Ireland, but some Members in this House seem oblivious to that fact. Does the Minister accept that the Government must fully restore Northern Ireland’s position as a full part of the internal market of the United Kingdom? Does he also accept that the people of Northern Ireland cannot continue to be subject to laws in Northern Ireland on which they have no say or input? The status quo is not an option.

[Lord Frost (Con)]

My Lords, those are very good points. They are based on the fact that, ultimately, the protocol says that Northern Ireland’s position in the UK’s internal market must be respected and that it is part of the UK’s customs territory. That must be read alongside other provisions in the protocol, but we are not convinced that those requirements are being respected in the way that is necessary if we are to ensure that they are more than a dead letter. That is why we have proposed measures that would rebalance the protocol, support the balance of the Good Friday agreement and take us to a better place.

Protocol on Ireland/Northern Ireland: Effect of Renegotiation on Other Trade Negotiations

Lord Frost Excerpts

Thursday 21st October 2021 Lords Chamber

[Baroness Hayter of Kentish Town]

To ask the Minister of State at the Cabinet Office (Lord Frost) what assessment Her Majesty’s Government have made of the diplomatic consequences for (1) current, and (2) future, trade negotiations, of their decision to seek to renegotiate the Protocol on Ireland/Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, the Government are implementing a successful programme of trade negotiations around the world. Agreement in principle was announced with New Zealand overnight, and we have already reached agreement in principle with Australia. In both cases, these are hugely beneficial free trade agreements to both parties. We do not believe that our efforts to resolve the difficulties arising from the Protocol on Ireland/Northern Ireland will have any diplomatic consequences for our FTA negotiations programme.

[Baroness Hayter of Kentish Town (Lab)]

That really sounds like wishful thinking. We have heard about New Zealand, and indeed I think the noble Lord was in his place at the time. We have applied to the CPTPP and we have the Australia deal. Can he really think that his willingness to tear up an agreement that he negotiated and the Prime Minister signed—in good faith, we assume—just two years ago will help the work of his fellow Ministers as they negotiate delicate deals with other countries around the world regarding the likelihood that we will hold to any agreement that we sign?

[Lord Frost (Con)]

My Lords, no one is speaking of tearing up the Northern Ireland protocol. We have made very clear that our wish is to negotiate a new version of the protocol with a new balance, and to do so consensually. That is not unusual in international relations, and there are plenty of examples that one could give. On the FTA question, look at the facts: we negotiated 60-plus free trade agreements last year before withdrawal; we have a huge programme of negotiations going on; and I am sure that they will come to good and beneficial results.

[Baroness Altmann (Con)]

My Lords, does my noble friend agree that, in any trade negotiation, trust is important and that, having signed agreements, it is important for the UK to maintain that trust? Does he agree that, in almost all cases, the free trade agreements agreed thus far do not require us to remove regulations that we already have? Would it be possible for the UK to commit to a period until, let us say, 2024 or 2025 for maintaining our regulations in order to rebuild trust and work out a solution that can demonstrate the UK’s good faith in trying to identify a new resolution for Northern Ireland?

[Lord Frost (Con)]

My Lords, as I have said on previous occasions, the question of trust is important and it takes two sides to create trust. As I set out in the speech in Lisbon to which the noble Baroness previously referred, there are a number of things that the EU has done that have not necessarily been conducive to building trust either, but we need to move on from that and generate new momentum to try to reach agreement on a revised protocol. On the question of SPS regulations, the difficulty is that free trade agreements are not the only reason why you might wish to evolve your own agri-food regulations, and indeed the EU has evolved its own autonomously since the start of 2021. Where there is divergence it is for that reason, not because of anything that we have done.

[The Earl of Kinnoull (CB)]

My Lords, 24 committees and groups were set up under the trade and co-operation agreement. Have all 24 now met and can they be considered fully operational?

[Lord Frost (Con)]

My Lords, they have not all met yet, although they have largely met. I think four of these committees still have to meet this year, then the trade partnership committee, and then we hope for another meeting of the Partnership Council before the end of the year. The agendas for specialised committees are published on GOV.UK for those who are interested. So the programme has well begun and we expect to complete a full round by the end of the year.

[Lord Anderson of Swansea (Lab)]

My Lords, can anyone trust this Government on international legal matters? They have already admitted to breaching international law again on Northern Ireland. Now they have failed to honour a protocol that they freely entered into, and they threaten to breach our clear obligations under the European Convention on Human Rights. Is this cavalier attitude to international legal obligations likely to be a positive or a negative feature in relation to our future partners?

[Lord Frost (Con)]

My Lords, I am afraid I do not entirely agree with the suggestion that we have been cavalier about our obligations under the protocol. Unfortunately, the problems that exist in Northern Ireland are the problems of implementation of the protocol, not of non-implementation of it. We have spent hundreds of millions of pounds on setting up services to help British businesses to trade with Northern Ireland, but unfortunately that has not solved the underlying difficulties. So implementation is not the solution; renegotiation and a better solution is.

[Lord Newby (LD)]

My Lords, in his speech in Portugal the Minister said that the Government are

“constantly faced with generalised accusations”

that they

“can’t be trusted and are not a reasonable international actor.”

When I asked him last time that he was at the Dispatch Box why this might be the case, he said that was a question that he constantly asked himself. I wonder whether this constant process of self-reflection has produced a clearer answer than the one that he was able to give me at that point.

[Lord Frost (Con)]

My Lords, I like to think that I engage in a constant process of self-reflection. I am reassured that it usually reaches the same result, which is that when I look at the way that this Government have acted on the international stage since Brexit was established, the role that we have played in the world, the establishment of AUKUS and our position on issues to do with China and many other issues, I think we stand as a constructive and fully responsible international player.

[Viscount Trenchard (Con)]

My Lords, does my noble friend agree that it is internationally recognised that the UK is rightly standing by its obligations to protect the Belfast/Good Friday agreement and that the EU has also recognised this, as evidenced by its agreement to negotiate changes to the protocol? Does he not also agree that the UK can now act as a leading advocate at the WTO of free and fair principles-based international trade, leading to greater prosperity for many millions around the world?

[Lord Frost (Con)]

My noble friend makes an extremely good point: that after Brexit, as an independent global trade player, we are one of the biggest in the world. We are very influential and hope to become more so in the WTO, and to be able to stand up and speak for trade liberalisation across the world, which is of huge benefit to us all.

[Lord Hannay of Chiswick (CB)]

My Lords, will the Minister tell us what the case is for the UK being the only country in the world which has two separate Ministers and two separate departments, each dealing with roughly one-half of our overseas trade? What are the consequences for our handling of negotiations? What analysis has he received from the embassy in Washington on the realism of expecting decisive progress on a US-UK trade agreement under the Biden Administration?

[Lord Frost (Con)]

My Lords, the decision taken, which I think is a good one, is that the UK-EU TCA is so sui generis—in fact, it goes much beyond trade into many wider areas such as law enforcement, road transport and so on—that it is best to handle it in a sui generis way. I do not know whether that decision is for ever, but it is the one that has been taken at the moment. We are ready to talk to the US about an FTA when it is ready. The US is conducting a review of its external trade policy at the moment. Some negotiating rounds have already taken place, but we stand ready to talk when both sides are ready.

[Baroness Smith of Basildon (Lab)]

My Lords, I have listened carefully to the Minister’s answers today and rarely have I heard answers so complacent about the concerns raised in your Lordships’ House on our international reputation and future ability to negotiate agreements, whether they be trade agreements or the complex negotiations around COP 26, if there is a lack of faith in us being trusted to keep our word on agreements we have already negotiated. I hope that he will go away and reflect on the comments he has made to your Lordships’ House today. On that issue, I bring him back to his earlier comment about the legal text. He said, “We will publish the legal text if it is useful”. We think it would be very useful and, if there is no difference from what has already been said, can he explain why he will not publish it? I bring him back to the issue of trust and transparency as something on which this Government have to make up for lost ground.

[Lord Frost (Con)]

My Lords, we will publish the legal text if it is useful to the negotiating process between us and the European Union. At the moment, I am not convinced that it would be; circumstances may change, so that is not a decision of principle. To return to the first point of the question, I am of course in no way unmindful—quite the opposite—of our international reputation but, in the end, I cannot do anything about how others perceive us.

[Noble Lords]

Oh!

[Lord Frost (Con)]

I am not complacent about things that are in our hands, which is the situation in Northern Ireland. I am in no way complacent about that and it is the focus of the activity we are trying to pursue. This Government are responsible for the prosperity and security of Northern Ireland. That is why we are pursuing the task as we are and that, along with the support of the Good Friday agreement, is our primary objective as we go forward.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords—

Protocol on Ireland/Northern Ireland: EU Proposals

Lord Frost Excerpts

Thursday 21st October 2021 Lords Chamber

[Baroness Ritchie of Downpatrick]

To ask the Minister of State at the Cabinet Office (Lord Frost) what discussions he has had with the Vice President of the European Commission following the publication of the European Union’s proposals regarding the Protocol on Ireland/Northern Ireland on 13 October.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, I am in regular contact with Vice-President Šefčovič about the full range of issues relating to the UK-EU relationship. Most recently, I met him in Brussels on 15 October for an initial discussion of the EU’s proposals. I expect to talk to him again very shortly. My teams and that of the EU have been in talks in Brussels this week about the detail of the proposals that the EU has put on the table.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, ongoing discussions will undoubtedly highlight the innumerable benefits that have flowed from the Northern Ireland protocol, encompassing business and economic development, inward investment opportunities and job creation, as well as the areas in which a joint UK-EU approach is required around mitigations for medicines and agri-food products. In view of this, can the Minister indicate whether the Government have undertaken an evidence-based assessment of the impact of the removal of the European Court of Justice on local businesses in Northern Ireland? It is a yes or no answer. By the way, no business in Northern Ireland has highlighted a problem with the European Court of Justice.

[Lord Frost (Con)]

My Lords, opinions differ on the innumerable benefits of the protocol, as the noble Baroness puts it. I certainly hear concern from business about the imposition of EU law without consent that the Court of Justice of the European Union is at the summit of. The difficulty is that it is not true to say, as some do, that the protocol gives the benefit of both worlds. It gives access to the EU single market for goods but at the very significant price of restricted access to Northern Ireland’s major trading partner, which is Great Britain and the rest of the United Kingdom. That is the unsatisfactory balance that we currently have, one that needs to be redressed.

[Baroness Crawley (Lab)]

My Lords, does the Minister intend to promote the benefits of the protocol, as set out by the noble Baroness, Lady Ritchie, to the business community in Northern Ireland, 67% of which believes that Northern Ireland’s status now represents many opportunities for the region? Will he say which of the many benefits set out in the European Union’s 13 October proposals he is most excited about and engaged with? For example, is it that if a lorry transports 100 different food products from GB to Northern Ireland, only one certificate will now be needed instead of 100 certificates? We would join him in such a campaign.

[Lord Frost (Con)]

My Lords, my team has been in discussion with the EU on this subject all week. We are seeking to understand the detail that underlies some of the headline claims that the EU has made. It is possible that we do not fully understand that detail yet, but perhaps that will come. One aspect of the EU proposals that I am excited about is that they show that what previously it has considered impossible—changing its own laws for the special circumstances of Northern Ireland—is now possible. That is a very important and welcome step, and I hope the EU might be able to go further than the proposals it put on the table last week.

[Baroness McIntosh of Pickering (Con)]

I think my noble friend would agree that the Northern Ireland protocol is an integral part of the withdrawal agreement. Does he not share my concern that, if we go back and seek to renegotiate the Northern Ireland protocol, we will open up and have to renegotiate the withdrawal agreement as well?

[Lord Frost (Con)]

My Lords, the protocol has always been a somewhat separable bit of the withdrawal agreement, in the sense that it was renegotiated after the first version of the withdrawal agreement was agreed back at the start of 2019. It is to some extent free-standing in that sense, so I do not think that opening it up should affect wider parts of the deal. It is a text that is there to deal with a very specific problem, and therefore we need to find the correct, very specific solution.

[Baroness Ludford (LD)]

My Lords, the New York Times ran an interesting article a few days ago under the headline “Showdown Over Northern Ireland Has a Key Offstage Player: Biden”. It was clearly briefed by administration officials and said:

“In recent days, unprompted, Mr. Biden asked his staff for an update on the negotiations between Britain and the European Union over trade arrangements in Northern Ireland. He urged them to relay a message to the Johnson government that it should not do anything that would jeopardize the peace accord in the North”.


It also said that

“pressure from the American president may cause Mr. Johnson to think twice about provoking another destabilizing clash with Brussels.”

Does that pressure do so, or are this Government really going to antagonise what they love to describe as their closest ally?

[Lord Frost (Con)]

My Lords, as a Government we obviously have our own dialogue with the US Government that does not depend on messages in the New York Times. I refer back to the statement made by the Prime Minister when he was in Washington last month, when he noted that he and President Biden were “completely at one” on the importance of protecting the Belfast/Good Friday agreement. We are completely at one on that subject.

[Lord Kerr of Kinlochard (CB)]

I am really puzzled by the Minister’s reply to the question from his noble friend, the noble Baroness, Lady McIntosh. Does he not acknowledge that in law the protocol is an integral part of the treaty? Does he accept that safeguard action under Article 15 of the protocol could not extend to abrogating Articles 12 and 5 of the protocol, which set out the role of the court? Does he accept that the EU could not conceivably agree to amend Article 12 to confer on a non-EU court the right to interpret EU law? If so, how would he deliver on his threat? Since it cannot be done legally, does he again envisage legislating to act illegally in a “limited and specific way”? If so, I do not believe this House would agree.

[Lord Frost (Con)]

My Lords, obviously the protocol is part of the withdrawal agreement but that does not prevent its being reopened and renegotiated separately. The same is true of any treaty; it is possible to negotiate part and not the whole thing. On the Article 16 question, obviously the Article 16 provisions in the protocol are nearly sui generis. There are very few parallels for them anywhere else. The scope of how they may be used remains to be tested. What is clear is that they are safeguards to deal with an evolving and difficult socioeconomic situation and the issue of trade diversion. When and if we take action under Article 16, obviously that will be the purpose of any action. As I say, though, we hope to come to a consensual agreement rather than having to go down that road.

[Baroness Chapman of Darlington (Lab)]

I take it from the answers the Minister provided to the previous Question that he did not consult Ministers in Northern Ireland about his new draft text and does not intend to publish it for the benefit of politicians in this country. I gently say to him that contentious issues in Northern Ireland are never resolved without the engagement of senior figures, and he needs to take this far more seriously. Rather than flying around Europe making speeches, why is he not speaking with Mr Šefčovič in Belfast to thrash out these issues? The people of Northern Ireland and the public here will tire of this endless Brexit drama vortex that he seems to want to keep us captured in. We want solutions and he will find them only through dialogue, and I suggest that that should take place in Belfast.

[Lord Frost (Con)]

My Lords, we are obviously engaged in a very intensive dialogue on this question, both at my level and among teams and beyond that. As I said, obviously we talk to senior politicians in Northern Ireland across the range of opinion the whole time, and that is the responsibility of others in this Government as well as myself. We will publish the legal text if it is useful to the process, just as we did last year in negotiations on the trade and co-operation agreement. When it is useful and when it can help to get us closer to agreement then we will consider doing that, but at the moment it is a confidential negotiating document.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has elapsed.

Protocol on Ireland/Northern Ireland: Impact on Trade

Lord Frost Excerpts

Thursday 21st October 2021 Lords Chamber

[Lord Hain]

To ask the Minister of State at the Cabinet Office (Lord Frost) what assessment Her Majesty’s Government have made of the impact of the Protocol on Ireland/Northern Ireland on trade within the island of Ireland since 1 January.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, as noble Lords would expect, the Government continue to observe very closely the situation as regards trade on the island of Ireland and more broadly, for example, trade in goods from Great Britain to Northern Ireland. It is clear that trade in both directions between Ireland and Northern Ireland has increased significantly since the start of the year and that this constitutes trade diversion created by the pressures of the protocol.

[Lord Hain (Lab)]

I thank the Minister for his reply. On the protocol, he told the Centre for Policy Studies at the Conservative Party conference on 5 October that he was “keeping the other side on the hop, cultivating uncertainty with regard to how we are going to react”. Why?

[Lord Frost (Con)]

My Lords, I did indeed say that, because it is my job to get the best outcome for this country in the negotiations that I am charged with conducting. That is what we did over the previous 18 months and that is what I intend to do now. I do not think it would be particularly good tactics to reveal to the other side exactly what we are going to do or how we are going to go about it.

[Lord Moylan (Con)]

My Lords, in addition to disrupting and diverting trade, the Northern Ireland protocol contains a systemic democratic deficit, in that laws are made with direct effect for Northern Ireland by the European Union with no opportunity for democratic say by those affected. This is unique in Europe. Does my noble friend agree that the removal of the jurisdiction of the European Court of Justice in Northern Ireland is a necessary but not sufficient step for correcting this anomaly and restoring this basic human right?

[Lord Frost (Con)]

My Lords, I very much agree with the thrust of the question asked by my noble friend. We made very clear in the Command Paper that we published in July that the European Court of Justice and the system of law of which it is at the apex are a big part of the political difficulty that has arisen in Northern Ireland, and we need to find more balanced ways of resolving disputes in future.

[Lord Liddle (Lab)]

My Lords, in the Minister’s recent speech, which he made in Lisbon, not in this House, he said that

“the Protocol represents a moment of EU overreach when the UK’s negotiating hand was tied”.

But are the facts not somewhat different? Is it not the case that the Johnson Government, on the Minister’s recommendation, accepted an arrangement that Theresa May said no British Prime Minister would ever accept; that the Johnson Government, presumably on the Minister’s recommendation, decided to prioritise a hard Brexit over the sustainability of the Good Friday agreement and peace and security in Northern Ireland; and that the Johnson Government, perhaps on the Minister’s recommendation, signed a treaty in the full knowledge that they had no intention of implementing its full provisions? Is it not about time that the Minister accepted some personal responsibility for the mess we are in in Ireland?

[Lord Frost (Con)]

So, my Lords, I reject the implication of the question that there is any contradiction between a so-called hard Brexit, which is the only real Brexit and the only form of Brexit that allows this country the freedom it needs, and peace and security in Northern Ireland. Those two objectives are perfectly and absolutely compatible. We agreed a protocol that we hoped would do the job; it needed sensitive handling; it was highly uncertain in some of its mechanisms; and unfortunately it has not had the sensitive handling it needed. Therefore, we need to come back to the question. That is a pity, but unfortunately it is the reality.

[Lord Purvis of Tweed (LD)]

My Lords, the Northern Ireland Statistics and Research Agency’s most recent publication, issued on 4 August, highlighted that in 2019 trade between Northern Ireland and the Republic of Ireland increased by 9.9%, whereas trade with GB increased by 6.6%—so the Minister’s claim that there is trade diversion as a result of the protocol is not the case. There is now a trend, with growth in the Republic. Therefore, is it not part of the UK Government’s responsibility to promote exports from Northern Ireland to Ireland and to make sure that the Northern Ireland economy benefits from certain parts of the protocol? What are the elements of the protocol that the Minister is most proud of?

[Lord Frost (Con)]

My Lords, I am proud of securing a deal that delivered democracy and took this country out of the European Union in 2019, which the people of this country voted for. On trade, the figures from the Irish Central Statistics Office for the first eight months of the year show that trade from Ireland to Northern Ireland has gone up 35% and from Northern Ireland to Ireland has gone up 50%. Those are significant figures and clearly show that there is something unusual going on—which I think is trade diversion.

[Baroness Chapman of Darlington (Lab)]

I have a couple of very simple questions for the Minister about this. I tried to ask them last week, after he flew back from Lisbon, but he did not seem to want to answer them then. I shall try again today. They are very simple.

First, the Minister has sent a draft legal text of the protocol, which he says he has written, to Brussels. He does not want to show his cards on other issues but, seeing that he has already shown the text to Brussels, why is he not showing it to parliamentarians in the UK? Secondly, it is very important that he engages meaningfully and fully with elected politicians in Northern Ireland on this issue. Did he consult any Ministers in the Northern Ireland Assembly before he sent his draft text of the Northern Ireland protocol to Brussels?

[Lord Frost (Con)]

My Lords, I think the question is based on a slight misconception that the legal text that we sent in represents some new stage or evolution in our position. It does not. It reflects the position that was set out in the Command Paper on 21 July and puts it into legal form. It is a negotiating document for the purposes of negotiations. It does not change the UK Government’s position in any way. Of course we discuss with elected politicians in Northern Ireland all the time what our position is, and we did that while preparing the Command Paper.

[Baroness Neville-Rolfe (Con)]

My Lords, I am interested in trade and especially in exports, because they are vital to UK growth and success. We heard from the Minister about trade within the island of Ireland, but how does he expect the pattern of UK trade within the EU 27, both in goods and services, to change in the years ahead?

[Lord Frost (Con)]

My Lords, my noble friend identifies an important point, which is that trade in both goods and services is subject to a lot of noise at the moment—the ongoing Covid pandemic, the effects of leaving the customs union and the single market, stock building and so on—and it is difficult to isolate trends. Nevertheless, our goods exports are nearly back to the levels of 2019. Services exports and imports are down somewhat, but of course the huge impact on the movement of persons, tourism and so on has very significantly affected those figures. So it will be a long time before we reach a steady state, but I have huge confidence in the ability of our exporters and traders to manage that situation.

[Lord Wallace of Saltaire (LD)]

My Lords, can the Minister clarify whether he understood when negotiating the protocol that it was incompatible with British sovereignty, or whether he has discovered that since? He will recall that AV Dicey’s definition of UK sovereignty as indivisible, which I know he now follows, was shaped by his active and bitter opposition to Irish home rule. In those terms, the Good Friday agreement is also an infringement of indivisible UK sovereignty. Does the Minister think that should also be renegotiated?

[Lord Frost (Con)]

My Lords, the difficulty we have with the protocol is not so much the sovereignty issue, because the territorial integrity of the UK and the integrity of the internal market of the UK are very clearly protected in the protocol, but the difficulty it has generated in movements of goods and trade within the United Kingdom. If the protocol was to work, it would have required very sensitive handling. Unfortunately, it has not had that sensitive handling, and therefore we have a political problem.

[Lord Adonis (Lab)]

My Lords, the new EU ambassador to the United Kingdom presented his credentials to Her Majesty the Queen earlier this week. Afterwards there was a reception at which many Members of the House were present. The Minister was not present, nor was any representative of the Government, which—as a senior diplomat pointed out to me—would have been utterly inconceivable at an equivalent reception for a new ambassador from the United States or any of our other principal allies. I know that the Minister has now decided to set himself up as an anti-diplomat rather than a diplomat and unlearn all the arts and craft of his trade that he had accumulated over the previous 20 or 30 years, but does he not think that the interests of the United Kingdom would be well served by him once again becoming a diplomat, rather than gratuitously insulting our European partners?

[Lord Frost (Con)]

My Lords, I very much wished to go to that reception. Unfortunately, as colleagues know, I was not well on Tuesday and could not attend, but my office was there and represented me. I wished to avoid any apparent discourtesy, and the ambassador has acknowledged that. It is very important that we maintain the normal diplomatic arrangements between our countries and territories, and it is absolutely my intention that we should do that.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has now elapsed and we move to the second Question.

Northern Ireland Protocol

Lord Frost Excerpts

Wednesday 13th October 2021 Lords Chamber

[Baroness Ludford]

To ask Her Majesty’s Government, further to the speech made by Lord Frost on 12 October 2021, what plans they have to change the Northern Ireland Protocol.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, the objective of the Northern Ireland protocol was to support the Belfast/Good Friday agreement. It is now undermining it. I set out our proposals to change these arrangements to this House and in a Command Paper on 21 July. We expect written proposals from the Commission today in response to the current difficulties. I hope that we can resolve this situation by agreement but, if we are to do so, we will need to see significant change to the current arrangements.

[Baroness Ludford (LD)]

My Lords, I want to ask the Minister two questions. First, apart from with the DUP, what consultation have the Government undertaken in Northern Ireland to lead the Minister to threaten to breach the protocol? The chief executive of Manufacturing NI says that

“no one in business has raised the issue of the ECJ oversight as a problem … It is purely a political and sovereignty issue, and not a practical or business issue.”

Does ideology trump pragmatism and business in Northern Ireland?

Secondly, the Minister has trashed the political credibility of the Government and, indeed, its electoral legitimacy, given that the 2019 election was won on the basis of “Get Brexit done” triumphalism about the withdrawal agreement and the protocol. However, he is also trashing the UK’s international reputation. In the words of legal expert Professor Mark Elliott,

“the UK, if it wishes to be part of the rules-based international order, cannot pick and choose the international legal obligations that it honours”,

and to believe otherwise is “legally illiterate”. Does that bother the Minister?

[Lord Frost (Con)]

My Lords, there is quite a lot in that question but I will try to deal with the two points. We talk to people of all opinions across the spectrum of political opinion in Northern Ireland. In doing so, I personally have heard quite a lot of concern about the imposition of European Union law in Northern Ireland without democratic consent; of course, the Court of Justice stands at the apex of that system.

On the second question, we set out our approach in the Command Paper. I do not think that there is much more to say. We have been clear that the threshold for using Article 16 has passed; Article 16 is a mechanism in the protocol whose use is legitimate if the circumstances require it. We would prefer to find a solution by consensus but Article 16 is there.

[Baroness Chapman of Darlington (Lab)]

My Lords, I welcome the Minister back from his brief stop in Portugal yesterday. I note that your Lordships’ House was sitting then; we too would have appreciated hearing from him as he announced his new text.

Although we welcome the opportunity to hear from the Minister this afternoon, it is a shame that this Question is taking place at 3.45 pm, given that the EU’s proposals for amending the protocol are due to be published in just two hours’ time. Can the Minister confirm that he will consider the EU’s proposals in good faith, and that the Government will engage constructively in finding solutions to protect livelihoods and communities in Northern Ireland? In his speech yesterday, the Minister said that he has drafted a new protocol. When will we see the legal text? Given the direct importance of this process for the people of Northern Ireland, has he consulted Northern Ireland Ministers on his text?

[Lord Frost (Con)]

My Lords, my speech in Lisbon yesterday covered much more than the Northern Ireland protocol. I am sure that the noble Lords who have read it have seen that it was an attempt to set out our wider relationship with the European Union; the protocol policy was as set out in the Command Paper. I agree that we are looking forward to getting the proposals from the Commission later today. Obviously we will look at them positively and constructively; I am sure that we will want to discuss elements of them in more detail. We very much want to get into an intensive talks process on those proposals, as well as on the proposals we sent. As the noble Baroness points out, we have sent a draft of the legal text to the Commission. It is a negotiating document at the moment but, of course, I expect that we will make it public if that seems to be useful to the process in future.

[Lord Lamont of Lerwick (Con)]

My Lords, would the noble Lord confirm that more than 200 GB firms have stopped supplying goods to Northern Ireland and that the Northern Ireland protocol is just not working satisfactorily? Secondly, as regards accusations that we are going against the rules-based international order and the rule of law, is it not a fact that Article 13(8) of the protocol itself envisages that it could be succeeded by other agreements?

[Lord Frost (Con)]

My Lords, my noble friend is absolutely correct that 200 firms have ceased trading with Northern Ireland this year, including some quite significant ones. The existence of this customs process between Great Britain and Northern Ireland is at the heart of some of the problems we are experiencing with the protocol. My noble friend is also right that Article 13(8) of the protocol provides for successor arrangements. This was envisaged and explicitly written into the protocol when we negotiated it. It reflects the fact that it is not unusual in any way to renegotiate or supersede international agreements, which is what we hope to do in this process.

[Lord Anderson of Ipswich (CB)]

My Lords, the Minister said in Lisbon that we are being asked to apply EU law in part of our territory without our consent. Article 5 of the protocol provides that significant parts of EU law,

“shall apply to and in the United Kingdom in respect of Northern Ireland”.

Having agreed that protocol, how can the Minister say that this law applies without our consent?

[Lord Frost (Con)]

My Lords, there is, of course, a difference between what is in an international legal instrument and what happens day to day, as I am sure is well understood. The political difficulty being created in Northern Ireland is because individual legal instruments, which come out in profusion from the European Union day to day, are applied automatically in Northern Ireland without any sort of process. That system is not sustainable, which is why these governance arrangements need to change to bring them more in line with democratic norms elsewhere. We need to find a solution that everybody in Northern Ireland can get behind and which they think represents their interests.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, this Question is about trust and reputation. The admission by the Northern Ireland Secretary last September in another place that his Brexit Bill broke international law in a very specific and limited way was denounced by Members of this House from all parties, including the noble Lord, Lord Howard, and others. It led to a tit-for-tat reaction from the EU that it would unilaterally reject the protocol and, later, that it might not ratify the withdrawal agreement. Can the Minister tell your Lordships from where this reputation-destroying tactic by the UK Government of abandoning the rule of law emanated?

[Lord Frost (Con)]

My Lords, these matters were well debated at the time. The then UK Internal Market Bill is now a very good Act to protect the integrity of the single market of the UK. It does that very well. I am now looking forward. We are trying to find solutions to a problem that we hoped would not arise but which has now arisen because of the relatively insensitive way in which we have been forced to implement this protocol. We need to find a solution that everybody in Northern Ireland can get behind, which provides a better balance and which fully supports the Belfast/Good Friday agreement.

[Lord Newby (LD)]

My Lords, in his speech yesterday, the noble Lord said that

“we are constantly faced with generalised accusations that we can’t be trusted and are not a reasonable international actor.”

Why does the noble Lords think that this is now the case?

[Lord Frost (Con)]

My Lords, I asked myself that question implicitly in the speech and I still do not really know the answer. I think our behaviour since the start of the year as a fully independent country has been extremely constructive internationally. For example, we have established our own sanctions regime; we have been very proactive in it; we have welcomed citizens of Hong Kong to this country; we have been among the first to raise questions about the treatment of the Uighurs; and we have been the first to bring in sanctions against Belarus. I think we have been extremely constructive in this process over the years. I am sorry that from time to time we have faced accusations that we do not behave accordingly, but I do not think they are justified by the facts.

[Lord Dodds of Duncairn (DUP)]

My Lords, issues of sovereignty and democracy lie at the heart of the problems with the Northern Ireland protocol. Does the Minister agree that we may solve some practical issues, and the EU will produce proposals on that later, but unless we do away with the issue of laws being made for part of the United Kingdom in the 21st century without any say—yea or nay—of elected representatives of Northern Ireland, it will store up future problems of divergence and diversion of trade? Therefore, issues such as the ECJ and the democratic deficit need to be addressed if there is to be a permanent solution to the problems of the protocol.

[Lord Frost (Con)]

I very much agree with the thrust of the noble Lord’s question. We would like to find a permanent solution to this problem, a solution that everybody can get behind in Northern Ireland and beyond and that represents everybody’s interests. That is why partial solutions that tinker around the edges of the existing arrangement will not do the job. The question of sovereignty is fundamental. We have to find solutions that are consistent with UK sovereignty in Northern Ireland and, to come back to it, that support the Belfast/Good Friday agreement, which is fundamental to politics in Northern Ireland.

[Baroness Ritchie of Downpatrick (Non-Afl)]

My Lords, reports about the EU’s proposals, which are to be announced later this afternoon, suggest that they contain a lot of opportunities and solutions. Does the Minister agree that moving goalposts from positions which the British Government agreed with the EU and setting new red lines around the removal of the European Court of Justice, which is not a problem for Manufacturing NI, the leading law firms of Belfast and academics, keeps people divided and undermines businesses in Northern Ireland? Will the Minister ensure that this stops now?

[Lord Frost (Con)]

My Lords, we wait to see what the EU proposes to us later this afternoon. We will look at those proposals very positively and, I hope, constructively. If there are elements in them with which we can work, we will seek to do so. I do not agree that we have been moving the goalposts. We have been clear on our position since we put forward the Command Paper in July. Although other people may use the words “red lines”, I never do. We are beginning a negotiation. We have a track record of reaching successful outcomes in negotiations, despite the predictions that we would not. I hope that we will do so again this time.

[Lord Cormack (Con)]

My Lords, as my noble friend bears some responsibility for this protocol, will he use all his diplomatic gifts, acquired during his years in the Foreign Office, to ensure that we emerge from this difficulty with friends in Europe—those who used to be our partners—and that European friendships at this time of world instability are strengthened, not weakened? Will he be the diplomat?

[Lord Frost (Con)]

My Lords, my noble friend makes an extremely good, apposite point. I am sure he has read my speech made in Lisbon yesterday because I put great emphasis on the need to resolve the current problems, move forward and build friendships in Europe. We have too much in common to have unnecessary division over such questions. We need to resolve them. The western alliance has major interests and major problems to face around the world. We need to stick together and do that. That is why we want to resolve this question, so that we do not have to come back to it and can move on.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I am afraid that the 15 minutes allowed for this Question have now elapsed.

Imports from EU to UK: Grace Period

Lord Frost Excerpts

Thursday 16th September 2021 Lords Chamber

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, as I have noted, the Government have set out a pragmatic new timetable for introducing full import controls for goods imported from the EU to the UK. This revised timetable gives businesses more time to adjust to the new processes as they recover from the pandemic, which has impacted supply chains across Europe. As I have also noted, we have no plans to change this timetable further.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, as well as a damaging, dangerous shortage of HGV drivers and millions of pounds’ worth of food rotting in the fields around the United Kingdom, we now have this unbalanced situation where UK exports to the EU have full checks but there is this further, “pragmatic” delay in checks on imports, which will cause problems for our importers. Can the Minister remind the House who was responsible for negotiating this disastrous deal? Could he tell us the secret which might be of interest to some of his former colleagues: how did he get reappointed to the Cabinet?

[Lord Frost (Con)]

My Lords, there are some things that are best not delved into, I think. I am sorry that the noble Lord feels that an agreement with the EU which restores democracy to this country and gives us power over our own rules is so disastrous. It was nevertheless what we were elected to achieve and have achieved. We are very confident that we will benefit from it.

[Lord Purvis of Tweed (LD)]

My Lords, in his answer to my previous question, the Minister indicated that the appropriate comparison on trade figures would be with 2018, the last time that the economy was stable. The latest ONS figures, from July, show that trade with the EU is now down by 11%. What other pragmatic measures can the Government take to restore trade with the single market of the European Union?

[Lord Frost (Con)]

My Lords, as I frequently note, there are obviously many things going on in the global economy and in global supply chains, including the pandemic, increased costs and so on, and it is very difficult to draw firm conclusions from trade figures. It is true that July’s figures show a small dip in exports to the EU but, nevertheless, since January, exports to the EU have been rising consistently. In June, they were higher than the pre-pandemic, pre-Brexit figures. We are confident that British business is rising to the challenge and will continue to do so.

[Lord Liddle (Lab)]

My Lords, does the Minister agree that what he describes as a “pragmatic” policy is in fact a measure of discrimination by the British Government against non-EU imports at our borders, because they face controls in a way that EU imports do not? Does he accept that, as a result of that, we are potentially in breach of our WTO legal obligations as discriminating against different categories of people? Does he further accept that Covid is no excuse for these “pragmatic” delays? After all, the EU was able to impose its proper border controls in January 2021. Is this not yet a further example, of the many, of this Government’s incompetence in managing a very botched Brexit?

--- Later in debate ---

[Lord Frost (Con)]

My Lords, obviously there is a distinction in how we manage goods imported from the rest of the world compared to those from the European Union. That is consistent with WTO law and is obviously dependent on the special circumstances of us leaving the customs union and the single market. It is our intention, of course, to have a single set of world-class rules by 2025—if possible, earlier—for all goods that will give us the best border in the world. The decisions that we have taken on import controls are consistent with that and on that trajectory.

[Lord Lilley (Con)]

I welcome my noble friend’s decision to prolong the grace periods, for the reasons that my noble friend Lord Moylan spelled out earlier, but will he confirm that experience of grace periods in Northern Ireland shows the wisdom of what he is doing: that refraining from introducing the additional controls that the EU wanted us to impose on trade between Great Britain and Northern Ireland has not resulted in a flow of goods into the EU across the Irish border or undermined EU standards in any way, and that the only reason the EU is persisting in wanting us to apply those controls is to punish us and the people of Northern Ireland for Brexit?

[Lord Frost (Con)]

Of course, I agree very much with the thrust of my noble friend’s question. We believe that in the decisions we have taken, both in the context of the protocol and on trade more broadly, we are showing pragmatism in the way we are managing our borders, with a due focus on the real levels of risk involved. We hope that the European Union will do the same in the context of Northern Ireland and allow us to put in place arrangements, as set out in our Command Paper, that are consistent with those levels of risk.

[Baroness Chapman of Darlington (Lab)]

My Lords, it is striking that none of the problems raised is anything to do with the Minister or with the Government; it is all about Covid, the French, the Irish or the EU, but the nation is starting to suss this out. The Food and Drink Federation said just this week that the Government are undermining trust and confidence, because responsible businesses prepare for changes that repeatedly do not happen. Frustration is growing. Food and drink is Britain’s biggest manufacturing sector, employing people in every region, and it needs certainty. Does the Minister accept that if we do not reach a lasting agreement soon, these stopgap solutions will cost jobs?

[Lord Frost (Con)]

My Lords, we have great food and drink industries in this country; some of them have imports in their supply chains as well as exports and the free flow of trade in both directions is very important. I have noted what the Food and Drink Federation has said on this subject. I could not help noting that, last week, it was worrying about the consequences of introducing these controls and fearing that the just-in-time system would not work, while, this week, it is concerned that we have delayed the controls, so I think we just have to take the best decisions we can in the interests of the whole economy and enable our businesses to prosper as a result.

[Baroness Neville-Rolfe (Con)]

Does the Minister realise that the grace period puts British industries at a substantial short-term disadvantage? Are there any upsides beyond those already described by my noble friend Lord Moylan? I am very glad to see that my noble friend Lord Frost is still a Minister. What diplomatic and other steps will he take to put this matter on to a more satisfactory long-term basis?

[Lord Frost (Con)]

My Lords, we are obviously in constant touch with the European Union through the institutions created in the trade and co-operation agreement and many others. We sought last year to negotiate more relaxed arrangements at the border in both directions, on food and drink and on other issues. Unfortunately, the EU was not open to that at that point, but if it were to become open to it in future, we would obviously wish to engage in that discussion. That is clear, and we will keep making that case, because we believe that it is in the interests of both parties.

[Lord Dubs (Lab)]

My Lords, is the Minister aware that accusations are being made against him that he is of the view that sabre-rattling gets results from Brussels? What can he do improve our relationships both with Brussels and in particular with the Irish Government? Does he agree that our relations with those two are pretty poor at the moment?

[Lord Frost (Con)]

My Lords, I do not agree that relations with either Government or entity are poor, though relations can always be better, of course, and there are some significant differences between us at the moment. I am not sure that I agree with the suggestion that we are sabre-rattling; that is not the way we go about things. We are setting out our case and being clear about what changes would produce a better situation, whether as regards the protocol or anything else. It helps relations when countries are clear about what they think and others can respond.

[Baroness Randerson (LD)]

My Lords, one of the things deterring people from becoming HGV drivers is the amount of time now spent going through the ports, with so many extra forms to deal with. The Minister has recognised this by extending yet again the date for implementation of the new rules, but of course they apply going into the EU. What is the Government’s estimate per average lorry of the additional time it now takes to transport goods to the EU? How many additional HGV drivers do we need for that alone?

[Lord Frost (Con)]

My Lords, we obviously keep the flow of HGVs, lorries and trade at all our ports under very close scrutiny. I do not have figures to hand on that subject, but I know that trade is now flowing freely, delays are minimal and I pay tribute to the customs authorities not only of our Government but of our closest trading neighbours—France, Belgium and others—who show a degree of pragmatism in enabling this to happen, so that whatever difficulties there were at the start of the year are no longer significant and trade is flowing freely.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, the time allowed for this Question has now elapsed.