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.

Protocol on Ireland/Northern Ireland: Impact on UK Internal Market

Lord Frost Excerpts

Thursday 18th November 2021 Lords Chamber

[Lord Dodds of Duncairn]

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 (1) Northern Ireland’s place in the United Kingdom internal market, and (2) the flow of trade.

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

My Lords, the protocol recalls the importance of maintaining the integral place of Northern Ireland in the UK’s internal market and is clear that Northern Ireland is part of the UK’s customs territory. We are concerned that these provisions are not reflected in the way in which the protocol is being implemented. As a result, there is clear evidence of trade diversion. Trade data shows that trade between Northern Ireland and Ireland has increased significantly in both directions this year.

[Lord Dodds of Duncairn (DUP)]

My Lords, the Minister knows that the protocol is having a major adverse impact on trade flows between Northern Ireland and the rest of the United Kingdom, never mind the massive destabilising effect on the political institutions and the political process in the Northern Ireland. The chairman of Marks & Spencer says the EU proposals threaten to increase the administrative burden on imports to Northern Ireland. They could result in “worsening friction”, he says and, as a result, his firm and others might have to stop sending goods to Northern Ireland.

The head of the Road Haulage Association in Northern Ireland referred to the EU proposals as “window-dressing”. He knows, as we all know, that the EU proposals do not address the fundamental issues of the protocol. Will he now tell the House and tell the people of Northern Ireland when he is going to implement the proposals set out in the Command Paper of July this year to finally restore Northern Ireland’s place in the UK internal market fully, to fully restore Northern Ireland’s place inside the UK customs union, not on paper but in reality, and finally restore full democratic accountability to Northern Ireland as part of the United Kingdom in the 21st century?

[Lord Frost (Con)]

My Lords, the noble Lord sets out serious concerns, which we share. I should like to make our position on these negotiations and Article 16 100% clear, as he asks. Whatever the messages to the contrary that the EU may think it has heard or read, our position has not changed from the one I set out on 10 November or, indeed, in July at the time of the Command Paper. We would prefer to reach a negotiated agreement if we can. That is the best way forward for the stability and prosperity of Northern Ireland but I want to be clear that, as the responsible Minister, I would not recommend any outcome from the negotiations that I did not believe safeguarded political, economic or social stability in Northern Ireland. In such circumstances, we obviously would need to provide the necessary safeguards using Article 16. Those safeguards remain very much on the table and they are a legitimate provision in the protocol. No decision has been taken to exclude a priori any specific timing for Article 16. That will be shaped by whether and how quickly negotiations make progress.

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

My Lords, the Minister is once again equivocating on a very important issue, just as he did when he praised the treaty he had negotiated and then rubbished it. When he threatens to trigger Article 16, he then says, “Oh no. There’s no way I am going to do that”. Would he be surprised if increasingly, he is known here and in Northern Ireland as the “Grand Old Duke of York”?

[Lord Frost (Con)]

My Lords, to be honest, what I have just said cannot be described as equivocating. I have tried to make my position 100% clear on these negotiations and on Article 16, and it has not changed. It is that if we can find a negotiated solution, that is better. If we cannot find one, then the safeguards are legitimate.

[Baroness Suttie (LD)]

My Lords, Belfast Queen’s University’s most recent survey found that 52% of those who responded think that on balance, the Northern Ireland protocol is a good thing. Does the Minister agree that, rather than threatening to invoke Article 16, 52% is a sufficient mandate to get these practical changes done and to make the protocol work for the people and businesses of Northern Ireland?

[Lord Frost (Con)]

My Lords, I have indeed looked at the polling conducted by Queen’s University, where I had a good meeting yesterday, by the way. There is a lot of other polling around on this subject, and the conclusion I draw from it is that there is significant and stark division of opinion in Northern Ireland. Different polls have slightly different numbers but there is a clear division about the benefits of the protocol or its difficulties. In those circumstances, it is difficult to implement and that is why we are in the situation in which we find ourselves.

[Lord Godson (Con)]

My Lords, some overstated language has been employed regarding the potential implications of Article 16, such as its detonation being a nuclear response. Would my noble friend care to say a little more about what the normal procedures would be, were the article to be invoked, for ensuring that the UK’s rights under Article 16 and national rights are properly safeguarded and protected?

[Lord Frost (Con)]

I thank my noble friend for his question, which is a good one. The safeguards in Article 16 are what they say they are: safeguards. They are not an on/off switch but are significant and potentially capable of being used in a significant way. We as a Government will always proceed on the basis of predictability, certainty and clarity. There is a one-month process of consultation for the use of Article 16 between notification and activation, and we would expect to follow all the necessary procedures to provide the maximum possible legal certainty—if we reach that point.

[The Earl of Kinnoull (CB)]

My Lords, can the Minister say to what extent the protocol situation has affected the operation of the trade and co-operation agreement and the other EU-UK workstreams?

[Lord Frost (Con)]

My Lords, the trade and co-operation agreement and the withdrawal agreement are obviously separate. I have said that the difficulties we are having on the protocol are at the heart of some of the broader mistrusts that exist in the process at the moment. That said, the implementation of the TCA is going well. The specialised committees have largely met. The trade committee met earlier this week and, despite difficulties on issues such as fisheries, we are nevertheless implementing the TCA well and effectively, and the processes are working well.

[Baroness Chapman of Darlington (Lab)]

My Lords, there is a problem here, because the response the Minister gave to the noble Lord, Lord Dodds, seems to contradict the impression given to the UK and European media—and Simon Coveney, who said that he welcomed the change of tone from the Minister and anticipated that with political will, this issue could be resolved by Christmas. Earlier, I implied that the Minister was not in the mood for answering questions today. Can he prove me wrong by giving us his percentage assessment of the chances of success by Christmas?

--- Later in debate ---

[Lord Frost (Con)]

My Lords, it is somewhere between 0% and 100%, to be honest. It does not help to put specific numbers on these sorts of things. The noble Baroness makes a good point, though, about the comments of the Foreign Minister of Ireland and many others about what they perceive to be going on in the negotiations. Actually, I will talk to Simon Coveney later today. When I do so—and as I do in all those contacts—I will make our position abundantly clear, as I have set it out to this House. That remains our position, whatever else may be read in the media or by figures in the EU who are interpreting it.

[Lord Purvis of Tweed (LD)]

My Lords, it is the Government’s policy, not the EU’s, to enforce the system whereby any goods entering Northern Ireland will have to be marked as conformity assessed, separate from those sold within Great Britain. That was referred to by the chair of Marks & Spencer, who the noble Lord, Lord Dodds, quoted. It is nothing to do with the European Union; it is British government policy. The British Government have not asked in the negotiations on the protocol for that to be changed. So when will it change? Or is it the Government’s policy that it is permanent?

[Lord Frost (Con)]

My Lords, the processes that goods undergo when they enter Northern Ireland are those that, in our view, are required by the protocol, which, of course, has direct effect in UK law in many respects through the withdrawal Act. People would not want us to proceed in any way other than is consistent with those legal obligations. That is what we are required to do; the difficulty is that it is not consistent with social and economic stability in Northern Ireland.

[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.

Brexit Opportunities

Lord Frost Excerpts

Thursday 16th September 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, which is also being made in the other place, on the opportunities this country has now that we have left the European Union.

While we were an EU member, some of the most difficult issues that Governments of both parties faced were over regulatory issues generated by the European Union—to take just some examples, the services directive, the REACH directive, reforms of agricultural policy, very many pieces of financial services legislation and so on. Very often such laws, which had effect in this country, reflected unsatisfactory compromises with other EU member states. We knew that if we did not rescue something from the legislative sausage machine, we would be voted down and risk getting nothing. The laws that resulted were designed to lock every country—no matter its strengths or weaknesses—into the same structures. They were very often overly detailed and prescriptive. Moreover, the results of those negotiations and laws usually either had direct legal effect in the UK or were passed into our law through secondary legislation—either way, with very limited genuine democratic scrutiny.

This Government were elected to get Brexit done and to change this situation, and that is what we intend to do. Much has already changed, even in the last few months, but, given the extent of EU influence over our political system over nearly 50 years, this is a mammoth task. To begin it, we asked my right honourable friend Sir Iain Duncan Smith to lead a team to examine our existing laws in this area and our future opportunities. That team reported back earlier this year, and since then my right honourable friend the Chancellor and I, and other colleagues, have been considering his so-called TIGRR report in some depth. I am writing today to Sir Iain with our formal response to his report and, more importantly, with our plans to act on the basis of it. I am sharing the Government’s response with committee chairs and will deposit it in the Libraries of both Houses. It will also be available very shortly on GOV.UK.

I will now highlight some of the most important elements of these plans. First, we will conduct a review of so-called retained EU law. By this, I mean the very many pieces of legislation which we took on to our own statute book through the European Union (Withdrawal) Act 2018. We must now revisit this huge, but for us anomalous, category of law. In doing so, we have two purposes in mind. First, we intend to remove the special status of retained EU law so that it is no longer a distinct category of UK domestic law but normalised within our law, with a clear legislative status. Unless we do this, we risk giving undue precedence to laws derived from EU legislation over laws made properly by this Parliament. This review also involves ensuring that all courts of this country should have the full ability to depart from EU case law, according to the normal rules. In so doing we will continue, and indeed finalise, the process of restoring this sovereign Parliament, and our courts, to their proper constitutional positions.

Our second goal is to review comprehensively the substantive content of retained EU law. Some of that is already under way—for example, our plans to reform the procurement rules we inherited from the EU, or the plan announced last autumn by my right honourable friend the Chancellor to review much financial services legislation. We will make this a comprehensive exercise. I want to be clear: our intention is eventually to amend, replace or repeal all retained EU law that is not right for the UK. That problem is obviously a legislative one. Accordingly, the solution is also likely to be legislative. We will consider all the options for taking this forward. In particular, 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.

Secondly, we intend to begin a new series of reforms to the legislation we inherited on EU exit, in many cases as recommended by the TIGRR report. Let me give just a few examples. We intend to create a pro-growth, trusted data rights regime, more proportionate and less burdensome than the EU’s GDPR. My right honourable friend the previous Secretary of State for Culture announced on 10 September a consultation that is the first stage in putting new rules in place. We intend to review the inherited approach to genetically modified organisms, which in our view is too restrictive and not based on sound science. My right honourable friend the Environment Secretary will also shortly set out plans to reform the regulation of gene-edited organisms. We will use the provisions of the Medicines and Medical Devices Act 2021 to overhaul our clinical trial frameworks, which are based on outdated EU legislation, giving a major boost to the UK’s world-class R&D sector and getting patients access to new life-saving medicines more quickly. The MHRA, which as we know is a world-class regulator, is already reforming the medical devices regulations to create a world-leading regime in this area.

We will unleash Britain’s potential as a world leader in the future of transport. My right honourable friend the Transport Secretary will shortly set out ambitious plans, which include modernising outdated EU vehicle standards and unlocking the full range of new transport technologies. We also intend to repeal the EU’s port services regulations—a very good example of a regulation which was geared heavily towards EU interests and never worked properly for the UK.

We will drive forward our work on artificial intelligence, where the UK is already at the forefront of driving global progress. We will shortly publish the UK’s first national AI strategy, which will set out our plans to supercharge the UK’s AI ecosystem and set standards which will lead the world.

Thirdly, as recommended by TIGRR and the Penrose review, and as promised in the current consultation on reforming the better regulation framework, we will put in place much more rigorous tests within government before we take decisions to regulate. Now that we have control over all our laws, not just a subset of them, we will consider the reintroduction of a one-in, two-out system, which has been shown internationally to make a significant difference to how regulation proceeds.

Finally, Brexit was about giving everybody in this country, once again, a say in how it is run. That is true in this area too. We aim to tap into everybody’s ideas. So we will create a new standing commission, under visible and energetic leadership, to receive ideas from any British citizen on how to repeal or improve regulation. The commission’s job will be to consider such ideas and make recommendations for change, but it will be able to make recommendations only in one direction,: the direction of reducing or eliminating burdens. I hope that, in this way, we will tap into the collective wisdom of the British people and begin to remove the dominance of the arbitrary rule, of unknown origin, over people’s day-to-day lives.

Let me finish by being clear that this is just the beginning of our ambitious plans. I will, of course, return to this House regularly to update your Lordships on our progress and, more importantly, to set out our further intentions.

Brexit was about taking back control—the ability to remove the distortions created by EU membership, to do things differently, in ways that work better for this country, and to promote growth, productivity and prosperity. That is what we intend to do. I recognise that Brexit was not a choice originally supported by all in the country, or even, it seems, by some in this House. But Brexit is now a fact. This country is now embarked on a great voyage. We each have the opportunity to make this new journey a success—to make us, as a country, more contented, more prosperous and more united. I hope everyone will join us in doing so.

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[Lord Purvis of Tweed (LD)]

My Lords, like the noble Baroness, I was slightly surprised by the Statement, which I thank the Minister for giving advance notice of. When I heard that there was going to be a Statement—and we were told only this morning that there would be one this lunchtime—I was quite excited, because I thought it would be on the much-awaited impact assessment showing the economic opportunities for the United Kingdom as a result of Brexit. The Minister’s colleague on the Government Bench, the noble Lord, Lord True, promised me in correspondence two years ago that this impact assessment would happen. But as we heard during Questions to the Minister, it is the fault of everybody other than the Government that this has not happened. Instead of an economic opportunities assessment, we have a shuffling of the legislative rulebook.

Apart from a bit of revisionist narrative from the Minister about some of these regulations that the UK helped design, and then added to when we put them into domestic legislation, there has also been an enormous increase in the bureaucracy and number of regulations as a result of the Brexit process itself. Even during the Questions we just asked the Minister, we saw that the Government have failed to prepare our borders, failed to prepare systems for businesses to be ready and failed to have a system where businesses will even label the goods that are manufactured in the UK. Why do the Government not tackle these urgent issues first?

The Government have indicated that they wanted to end the legislative sausage machine, but by the end of 2020, Ministers had laid around 960 Brexit SIs, with more this year and more to come. Three chairs of committees in this House condemned the use of broad delegated powers instead of policy detail. Will the Government now rationalise the delegated powers they had given themselves to do all of this, where they had indicated that they need new legislative powers to do so, or will the UK legislative sausage machine increase?

The Minister did not mention in his Statement that the EU now has proposals for higher standards on carbon emissions, chemicals, medical devices and copyright protections. Will we fall in line on those areas? Will we update our own legislation to ensure that we are consistent with these higher standards, or will we fall behind?

Why was there no mention in the Minister’s Statement of copyright protection, which is currently being put in place by the European Union? If we do not follow suit, for generated content the UK will have less protection for copyright than our competitors within Europe.

I understand that we will need to review and then replace continuity trade agreements; the Minister did not mention the fact that we have incorporated into many trade agreements the very areas that he said we now want to review. What is the status of all the trade agreements the Government have heralded that we have made up until now?

On the specific areas the Minister mentioned on GDPR, is it still the Government’s position that in the adequacy review from Europe for 2025 we will still seek to be considered to be adequate when it comes to data? Is that a consideration as far as the Government’s position is concerned?

On GMOs, can the Minister confirm that this is England only? There is no reference to the devolved powers. I think the Minister is listening, so can he state that this is England only or will this now be for Scotland too? On clinical trials, is that England only? There was no mention of Northern Ireland in his Statement, which I was curious about. As we heard in Questions and as we debated in Grand Committee, the Government indicated in their Statement today that

“laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country.”

However, Northern Ireland will be continuing under many laws from a foreign entity, with no say over them. When I asked the Minister to set out proposals of how the democratic deficit would be addressed for Northern Ireland, he said to me that

“we have set out the issue without proposing a specific way forward”.—[Official Report, 13/9/21; col. GC 286.]

Finally, then, what is the specific way forward? There are many areas that are not present in the Minister’s Statement today, so when will there be a proper debate to allow us to have proper consideration of the Government’s legislative proposals?

[Lord Frost (Con)]

My Lords, I am encouraged by what I have heard from the noble Baroness and the noble Lord because it seems that they share our ambition to do more in this area and are disappointed by the fact that there seems to be less than they had hoped for. I encourage them to read the full reply to Sir Iain Duncan Smith, which I was not able to do justice to in my Statement.

The noble Baroness and the noble Lord underplay what we have been doing. We left the transition period only a few months ago, and already we have a new immigration system; we have agricultural reform arrangements that are different from the common agricultural policy; we are putting in place a new subsidy regime; we are planning to reform procurement rules; and we have put in place an international sanctions regime. We have plans for free ports and, as I said, for data and gene editing, and for reforms of port services, HGVs, energy and much more. That is not a bad list for a few months. We note the ambition and will do our very best to keep driving it forward. I note only that it is self-evident that none of these things would be possible if we had remained in the European Union, and they would also largely not be possible if we had remained in a so-called soft Brexit or European Economic Area model of Brexit, which so many parties opposite recommended.

We are pushing forward change. A large number of issues were raised and I am quite pressed for time. We are setting out a plan to increase the supply of HGV drivers. As I have said, we are in constant touch with the EU about equivalence and SPS rules, and if we could make progress that would be excellent. We are taking steps to support our agricultural industry—my right honourable friend the Prime Minister touched on that yesterday. Labelling is certainly something that we are consulting on, and we are supporting our fishing industry after Brexit, and so on.

The question of the devolved Administrations was raised. I have written to my opposite numbers in all the devolved Administrations and obviously I can guarantee that we will work very closely with them where these reforms intersect with devolved competence, and we wish to work as closely with them as we possibly can.

On the question of the impact assessment and the effect on the economy, I note that the economy is the fastest-growing in the G7. We have 1 million vacancies in the economy in this country, and this economy and this country are already prospering vastly under the arrangements that we are putting in place.

I had better wrap up, but I just say that we stand for change as a country and as a party; that is what people voted for. We want to make us a high-wage, high-productivity economy with controlled migration. People have to invest in the skills of everyone in our country. We do not want to be a low-wage, low-skilled economy reliant on cheap labour and where parts of the economy are neglected. We are putting in place reforms, a process of constant change and improvement, and rules that suit this country and will make a big difference for us in the future.

[Lord Grocott (Lab)]

My Lords, I welcome a number of the advantages that the noble Lord has identified of us being able to make our own laws again, but it might have been interesting or even entertaining if he had also listed the things that have not happened as a result of us leaving the European Union, which I have certainly listened to interminably over the last four years. At random, I say that we do not have the half a million unemployed that George Osborne said would occur; I seem to remember that it was said somewhere that the M20 would be a car park; and essential medicines were not going to be able to get into the country as a result of it all. It might be quite useful to have a list of that sort. However, the exhilarating thing in the Minister’s essential remarks is that if the Government make a mess of this, in two or three or maybe fewer years the British people will throw the Government out—they will have the capacity to do that. In contrast, when the EU has made laws via the Commission over so many years, many of them very bad, no one has been able to do that. That is at the heart of what has happened, and it is still exhilarating.

[Lord Frost (Con)]

My Lords, I thank the noble Lord for his comments. That is a very good suggestion; indeed, a lot of things have not happened that the gloom-mongers said would happen, and they are not going to happen. He is right that this is about bringing back democracy; if you do not like what we are doing, there are ways of dealing with that. We believe we are doing the right thing for the country and that it will prosper under the agenda we are setting out.

[Lord Cormack (Con)]

My Lords, will my noble friend give me some comfort? I thought that “take back control” meant an elevation of parliamentary sovereignty. Why are we therefore seeing so many government Bills stuffed with Henry VIII clauses? We had one on Tuesday this week. What we want is the sovereignty of Parliament—Parliament in control—not the sovereignty of the Executive.

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[Lord Frost (Con)]

My Lords, I have a huge amount of sympathy with the thrust of my noble friend’s comment. It is about bringing back democracy and restoring the authority of this Parliament. I recognise the controversy about the Henry VIII clauses, as he describes them. They deal with a particular situation involving the inherited EU law and the complexities of managing the legal transformation out of the European Union, and I hope that they will be seen in that very specific context.

[Baroness Wheatcroft (CB)]

My Lords, the Minister now boasts on his Twitter feed profile:

“You don’t get something for nothing, you can’t have freedom for free.”


Apparently, it is from a Rush song from “2112”. I do not recall him carrying that message around as he was leading us into Brexit. Since we have heard what we are going to do with that new-found freedom, in the absence of an impact assessment, can he tell us at what cost this freedom has been bought?

[Lord Frost (Con)]

My Lords, I do not think it has been bought at any cost. I make no apology for standing up for freedom—free enterprise and freedom to think and debate—and that is what we did not have very much of in the final years of our EU membership until the referendum. It is axiomatic, in my view, that free debate, free enterprise, free economies and the ability to change your Government will always benefit the countries that have those things. There is a lot of empirical evidence around the world that that proposition is correct.

[Lord Liddle (Lab)]

My Lords, the Minister’s predecessors in his position—the noble Lord, Lord True, who is sitting next to him, and the noble Lord, Lord Callanan—gave us repeated promises during the passage of the Brexit Bills through Parliament that the Government had no intention to weaken in any way the social, environmental and consumer protections that were involved EU law. Will he repeat that commitment today? Moreover, if he is not prepared to repeat it in full, will he give us a guarantee, following on from the question of the noble Lord, Lord Cormack, that these issues will not be dealt with by some tailored mechanism to speed up legislative passage but will be put before this House for full debate?

[Lord Frost (Con)]

My Lords, we are a high-standards country. The manifesto on which we won the election in 2019 was very clear about our intention to maintain high standards in all those areas. That does not mean that we do not intend to change them. The world moves on; high standards need to reflect the context in which we are operating. I am sure there will be change, but I do not believe that those changes will result in regression of standards.

On the noble Lord’s second point, I come back to the point I made earlier: many of these laws were not subject to any form of meaningful scrutiny in this Parliament and may have been imposed against the will of the Government. The way we progress on them needs to reflect that fundamental reality.

[Lord Hannan of Kingsclere (Con)]

My Lords, I very much welcome the Statement and the fact that my noble friend is here to give it. I very much welcome the report. I was astonished, when I was a new MEP 21 years ago, by how much big corporations lobbied for precisely these kinds of regulations, almost always because they saw an opportunity to disadvantage a rival by getting standards that they happened to follow anyway. Of course, they did not put it in that way— they would call it consumer rights or environmental protection—but that is almost always what it was, and it is wonderful that we are finally doing something about it.

Does my noble friend agree that the same principle should apply to our trade policy? Does he share my concern that the Trade Remedies Authority’s recommendation to remove some of the steel tariffs brought in by the European Union in retaliation against Trump was overturned? Does he see the same possibility of politics overriding economics, and does he believe that a global Britain should be an engaged, free-trading country where imports are cheap, costs are low and people have more money to spend on stimulating the entire economy?

[Lord Frost (Con)]

My Lords, I do believe those things. I have two points in response. On industry support for regulation, one reason that we intend to set up our standing commission is to make sure that we can listen not just to trade associations and big companies, important though they are, but to small and medium-sized enterprises, the people who gain from change and doing things differently, as well as those who gain from things being as they are. On free trade, of course I am a free trader. I believe that this country prospers by free trade; I think the whole Government believe that. On steel, obviously there is a particular situation in the global market in steel which has been discussed elsewhere, but, as a general proposition, we wish to reduce barriers, reduce tariffs, get in place free trade agreements and allow everyone to prosper.

[Baroness Ritchie of Downpatrick (Non-Afl)]

My Lords, the Minister referred to medicines and the MHRA in his Statement. Can he give your Lordships’ House assurances that the issues around the delivery and supply of medicines to Northern Ireland will be resolved in an amicable manner with the European Union? When do the Government expect to bring forward legislation to deal with that issue?

[Lord Frost (Con)]

My Lords, we set out our view on that in the Command Paper. It is obviously right and essential that people in Northern Ireland have the same access to medicines as those anywhere else in the United Kingdom, and we intend to ensure that. We think the best way would be to remove medicines from the protocol entirely, and that is what we still hope to be able to agree consensually but, as we have made clear, the tests for using Article 16 are met, safeguards are justified and this is obviously an area where there is a matter of the state’s responsibility to all our citizens. The actions we take need to be seen in that context.

[Baroness Hoey (Non-Afl)]

My Lords, I very much welcome this Statement from the Minister. It is one of the reasons millions of people all over the country voted to leave the European Union. I want to ask him about the timescale, because I worry that sometimes reviews get stuck at the bottom of some civil servant’s tray. I would like to make sure that this comes back to us very quickly and that we see the results of leaving the European Union as soon as possible. I ask him to say something about the timetable.

[Lord Frost (Con)]

My Lords, there is a complex list of proposals, consultations, ideas for legislation, specific plans for legislation, and so on, so it is hard to generalise. However, I wish to be clear that we intend to pursue all this urgently. That is why it is my responsibility as a Cabinet Minister to make this happen, over and above the departmental responsibilities that other Secretaries of State have. We certainly intend to pursue the review of EU law extremely urgently so that we can deliver results and make a difference rapidly.

[Lord Lilley (Con)]

My Lords, I welcome my noble friend’s Statement and, like him, I welcome the call from the Labour Front Bench for even more ambitious deregulation. It is healthy that there should be this competition between the two sides to improve and update our legislation, which we had no opportunity to do when we were in the European Union. I suggest that the way to move forward now, on top of the excellent TIGGR report, is to go back to the original briefs that Ministers were given when these directives were being negotiated. Invariably, they said, “Minister, we don’t really want this, but the best thing to do is to try to get it amended a bit here and a bit there”—and, if possible, a bit more than we actually got. If nothing else, there would be a guide to changes we can make just by going back to those briefs.

[Lord Frost (Con)]

My Lords, I very much welcome that suggestion from my noble friend. It is an extremely good one and a reminder that in many cases, Governments of both parties opposed proposals that have now become law and to which we are supposed to reconcile ourselves. I will certainly take that up and see what we can find—within the limits of Civil Service record-keeping capacity, which may impose some limits on what we are able to do.

[Lord Empey (UUP)]

My Lords, the Minister will be aware that the issue with the protocol in Northern Ireland is not necessarily its operation but its existence; that is the basic problem. Will he confirm that large swathes of the law that he proposes to amend and change will not be possible in Northern Ireland? We had evidence at our committee yesterday to that effect. The gap between the two parts of the United Kingdom will increase, not decrease, as this process goes on.

[Lord Frost (Con)]

This is obviously a very significant issue and why we put forward the proposals that we have in the Command Paper to try to deal with the problem. Our proposals for dual standards for goods circulating in Northern Ireland and a different way to manage the governance of the arrangements would, we hope, deal with the anomalies that exist, but, of course, they remain to be negotiated. It is a very significant difficulty which we have debated frequently and hope to resolve.

[Lord Davies of Brixton (Lab)]

My Lords, I am not used to this unarmed combat. Will the Minister update the House on the work of the Partnership Council? It held its first meeting on 9 June, since when we have heard nothing. This is despite the series of difficult issues that the council is meant to resolve following our departure from the EU, not least the recognition of professional qualifications. This body has the appearance of being the “long-grass council” where the issues that the Minister has failed to resolve will be left to fester.

[Lord Frost (Con)]

My Lords, I am certainly happy to update the House. The Partnership Council met before the summer, as the noble Lord noted. I would expect it to meet again before the end of the year. It is of course the supreme body of a complex substructure and the specialised committees have been meeting. Those that have not will meet over the rest of this month and in October, and will provide proposals and ideas to the council. So, although it may not be as visible as we would wish, there is a huge process under way that is designed to look at difficulties and, we hope, find ways of resolving them, including the question of qualifications that the noble Lord mentioned.

[Lord Dodds of Duncairn (DUP)]

My Lords, the issue of taxation without representation is becoming a bigger problem every day for Northern Ireland. These suggestions and proposals by the Minister, which are very welcome in many respects, simply cannot be applied to Northern Ireland. He must recognise the urgency of this situation. The EU is trying to kick the can down the road until after the Assembly elections next year. Will he act within the very short timeframe that we now have if stability is to be restored and proper democratic accountability for laws made for Northern Ireland introduced?

[Lord Frost (Con)]

My Lords, we certainly recognise the urgency of the situation and very much share the noble Lord’s anxiety on this question. The relative stability in Northern Ireland is because our Command Paper proposals are regarded as a good set of proposals that are capable of resolving the problem. Obviously, it is one thing to put them forward and another to see them implemented, so we absolutely need to have a meaningful negotiating process with the EU, which we do not quite have yet, to see whether we can resolve the issues centrally and to know that quickly. If we cannot do so, as I have said, other ways forward are possible.

[Lord McLoughlin (Con)]

My Lords, I very much welcome the Statement by my noble friend. Can he assure us that the Government will be able to respond quickly in certain areas when problems arise unexpectedly—not least on the issue of lorry drivers, which is perhaps a good example at the moment, and the requirements of the CPC regulations? For some lorry drivers who recently retired and are unable to go back into the industry because they do not have CPC regulation, would one of the solutions not be to allow them to operate within the United Kingdom without that regulation if they have a long record of driving safely?

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[Lord Frost (Con)]

My Lords, my right honourable friend the Secretary of State for Transport has of course set out proposals in this area, and I am confident that they will deal with the situation over time. My noble friend’s general point is a good one. There is often a tendency to dismiss problems until they are evident, rather than get ahead of them. A degree of responsiveness, perhaps, via our standing commission—but not only through that—should help us to reap the benefits of the ability to move quickly, which we did not have in the European Union.

[Lord Adonis (Lab)]

My Lords, what would the Minister regard as the essential benchmark of success for the reforms he set out today in a year’s time?

[Lord Frost (Con)]

My Lords, the purpose of these reforms is, in the long run, to improve the productivity of the UK by putting in place regulations that are tailored to our conditions, rather than the average. So the goal of this Government is to improve productivity, growth and prosperity for everybody after Brexit. That is obviously one of the metrics on which the British people will make their judgment when the time arises.

[Lord Lansley (Con)]

My Lords, I am sure that the business community, which faces considerable pressures on costs and competitiveness, will be pleased to hear about the standing commission and the opportunity to address regulatory issues. However, will my noble friend add something about the Government’s quantified objectives in this regard? Last year, not including the effects of Covid, Brexit or Grenfell, regulation on business increased by £5.7 billion while the Government’s target was a net-zero increase. So what kind of objectives are the Government looking for in this regard, and will he and the Government confirm the importance of independent verification of that by the Regulatory Policy Committee?

[Lord Frost (Con)]

My Lords, the matters that my noble friend raised in his question are germane to the consultation on the regulatory framework, which I touched on and which obviously is still open—so I do not want to get ahead of that. I certainly very much agree with his general proposition that there is a kind of dead weight that tends to move in one direction, and it takes a lot of effort to push back against it and improve regulatory conditions overall. As I said, the possibility of “one in, x out” is one way of doing that, but there are other ways, and we are looking into how Governments around the world, including national sub-states and so on, have achieved this—so we will have more to say on that question.

Imports from EU to GB: Business Preparation

Lord Frost Excerpts

Thursday 16th September 2021 Lords Chamber

[The Earl of Kinnoull]

To ask the Minister of State at the Cabinet Office (Lord Frost) what steps Her Majesty’s Government are taking to prepare businesses for the introduction of new checks and controls on imports into Great Britain from the European Union on 1 October 2021 and 1 January 2022.

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

My Lords, on 14 September I announced a pragmatic new timetable for introducing certain controls for goods imported from the EU to the UK to give businesses more time to adjust. These controls will be introduced in two stages, on 1 January and 1 July. The Government continue to support all businesses trading with the EU in all sectors, including by putting in place additional staffing, comprehensive guidance for businesses and funding infrastructure to ease border processes.

[The Earl of Kinnoull (CB)]

In February 2020, the Government indicated that full border controls on EU imports would commence on 1 January 2021. In June 2020, the Government announced that many controls would instead be phased in, with mixed deadlines, from April to July 2021. In March 2021, the Government delayed the introduction of this mix of controls further, with phases from October 2021 to March 2022. Earlier this week, just three weeks before the first part of the mix was due to be implemented, the Government announced yet another delay, with phases from January to July 2022. Three times now, businesses have spent time, and no doubt money, preparing for key deadlines, and three times they have seen the can kicked down the road. What steps will the Government take to restore business confidence in their timetable for import controls, and will they compensate businesses for their wasted efforts?

[Lord Frost (Con)]

My Lords, it has of course been an extraordinary year to 18 months economically. We have been dealing with a pandemic of unpredictable quality, and it is very clear that there are global strains on supply chains and other aspects of the business environment. That is why we do not apologise for taking this series of pragmatic decisions to respond to the evolving situation. We have no plans to evolve these changes further, and the money that businesses have already spent in dealing with the situation will have been well spent.

[Lord Grantchester (Lab)]

Experiences of déjà vu are becoming not uncommon in this Government’s implementation of their own EU plans, despite repeated assurances. This means that Britain will continue to face full checks and controls on its exports, as it did from day 1, while imports will continue with border-free access. Supply chain problems resolve around massive labour shortages. To keep Christmas dinner on the table, will the Government now introduce a 12-month emergency visa implementation? Can the Government give assurances that extending agreements on the provision of veterinary services and updating paper health certificates online will become part of the solution to guard against the potential risk of disease and infections?

[Lord Frost (Con)]

My Lords, we face a complex set of interacting economic facts at the moment, and the decision that we took responds to that. We maintain the controls that are right for us, and we now have the powers to control and manage our economy as we see fit. We do not have to do the same thing as the European Union, and indeed, after 1 July, we are unlikely to have exactly the same levels of physical checks as the EU. We monitor the situation in all its respects, and we will take the decisions that are necessary to support the British economy.

[Lord Purvis of Tweed (LD)]

My Lords, on 21 July, the Government published their new border operating model, page 8 of which gives a commentary about how they have taken into consideration the impacts of Covid as the reason why they had made the delays already. So what has happened in the intervening seven weeks, between 21 July and now, that allows the Government to think that they are still not ready at their ports?

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[Lord Frost (Con)]

My Lords, it has been very evident over the early autumn that there are challenges with maintaining supply chains, and these are not limited to the UK. There are shortages of HGV drivers across Europe and beyond, and there has been a very significant increase in costs globally in the shipping of goods. These strains have become evident over the summer, and we have taken a pragmatic decision to respond to that and do what we can support British business in these circumstances.

[Lord Moylan (Con)]

My Lords, I welcome this delay, and indeed I hope that it becomes permanent. EU goods are safe, and the food is wholesome; we have been using them and eating it for 40 years. Trade rules do not need to be reciprocal, and, if the European Union chooses stupidly to impose upon its consumers the penalties of protectionism, there is no need for us to reciprocate. Does my noble friend agree that it is about time that the British Government were setting a free trade example to the European Union, and indeed showing it that such an approach could be applied with benefit on the UK’s border with Ireland, in place of the undemocratic protocol?

[Lord Frost (Con)]

My Lords, I think our position on the protocol is well known, and we may come to it later. Of course, my noble friend is absolutely right to say that it makes sense for us to put in place the controls that are right for us. Of course, there are controls—customs controls came in on 1 January—but we do not have to replicate everything that the European Union does. We intend to have a world-class border by 2025, with proportionate checks based on risk. That is the right way to proceed.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, yesterday, my noble friend Lord Adonis shared with us a six year-old photograph of a very slimline David Frost saying that the whisky industry needed the “fewest possible barriers” in order to sell into European markets. That is what business still wants, but the Government do not seem to listen, despite the fact that surely they must be involved in the design of the procedures and not just told at the end, “This is what you must implement”. Next week, almost a year after the trade agreement was signed, the Minister’s consultation on engagement with business closes. Can he assure the House that he will respond rapidly to that and put in place a robust system of consultation with business, unions and consumers?

[Lord Frost (Con)]

I thank the noble Baroness for that question. She is of course correct that our consultation on involving industry and civil society more generally in the implementation of the trade and co-operation agreement closes shortly. We will of course respond soon: we need to get these bodies up and running before the end of the year, and it is absolutely our intention to do so. As a general principle, it is right that the fewest possible controls are always best—that is clear. Of course, we are not always in control of the controls that the European Union puts in place. We believe that the benefits of being outside the customs union and in control of our own trade policy very much outweigh any disadvantages.

[Baroness McIntosh of Pickering (Con)]

Of course, the greatest free market was the single market, which we very sadly left. My noble friend negotiated very successfully the trade and co-operation agreement. Will he use his good offices to ensure that this world-class border, which we would all welcome, will lead to a single portal for documentation that will be largely online? If he finds that we have trained most of the EU drivers that have left and gone back to their respective countries, could we at least give them a short-term visa to come back and help us out over the Christmas period—the noble Lord, Lord Grantchester, suggested that we might need this?

[Lord Frost (Con)]

My Lords, I agree of course with my noble friend that an aspiration for a world-class border is very important; that is where we intend to go. Indeed, we hope that the so-called single trade window —a single portal—will be a very significant part of that, as we take this forward. As regards HGV drivers, my right honourable friend the Secretary of State for Transport has, on a couple of occasions, set out our plans to make it easier to increase the supply of drivers, and I am sure that that will bear fruit very soon.

[Baroness Smith of Newnham (LD)]

Last weekend, I left the United Kingdom for the first time since the end of transition period. I went to France, and I got in very easily: I showed my passport and my vaccine pass, and that was it. When I came back, it looked like a world-class border when I got to Stansted, where I just showed my electronic passport, but, to get there, I had to fill in numerous forms that the airline was expected to verify. Are the Government proposing to keep that sort of regulation going? Surely that is a deterrent to tourism and other people coming to the United Kingdom, which surely a world-class country would be wanting, not trying to discourage?

[Lord Frost (Con)]

I am sure that we all share the aspiration for borders that are as freely flowing as possible. Obviously, we are dealing with the consequences of a pandemic, and that requires controls and processes that, in an ideal world, we would not want to be in place. This matter is very much debated elsewhere. I repeat my point that we wish to see goods and people flow as freely as possible, consistent with maintaining responsible border controls of all kinds. That is what we intend to put in place.

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

My Lords, all supplementary questions have been asked, and we now move to the next Question.