Ukraine: Reconstruction

Lord Kerr of Kinlochard Excerpts

Thursday 25th January 2024 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

I believe I have addressed that. I agree with the noble Lord, and that is what I have said. Any action, whatever that may be, must be legally underpinned and legally robust. That is why sometimes we are slightly constrained in what we say from the Dispatch Box.

[Lord Kerr of Kinlochard (CB)]

Did the Minister see the article in this week’s Financial Times by Bob Zoellick, distinguished former Secretary of State, USTR and president of the World Bank, in which he argued that frozen funds should be used now for the benefit of Ukraine and suggested the best way of doing that? How did the Minister react to Bob Zoellick’s suggestion?

[Lord Ahmad of Wimbledon (Con)]

I think that it is based on his insight and experience. It is helpful that the US is exploring various options, as the noble Lord, Lord Fox, also pointed out. I cannot go further at this time than saying that we are working very closely with the US on the steps it is taking or seeking to take to see how they can best be transposed and reflected in our structures. Coming back to the key point, they must be underpinned to ensure that they are legally robust.

Belarus

Lord Kerr of Kinlochard Excerpts

Tuesday 5th December 2023 Lords Chamber

[Lord Cameron of Chipping Norton (Con)]

I thank the honourable Lady for her question—sorry, the noble Baroness; I will get there eventually. I have not asked the Foreign Office for a specific analysis of the weakness of the sanctions, travel bans and asset freezes that we put in place, but I am very happy to do so and see whether there are ways in which the system is not working. We must sense-check all these things. The International Accountability Platform for Belarus sounds like a terrible set of initials, but it is about making sure that we support all the NGOs and others in looking at all the human rights abuses in Belarus so that they are properly charted and written down and may be able to form the criminal case against people working in that regime in future. It is important to do that. I certainly take away the point made by the noble Baroness.

[Lord Kerr of Kinlochard (CB)]

The Foreign Secretary will be aware that President Lukashenko and President Putin are the only members of an exclusive club of leaders whose countries do not recognise the jurisdiction of the European Court of Human Rights. Does he share the view of the former Home Secretary that we should join that club?

[Lord Cameron of Chipping Norton (Con)]

I can point the noble Lord to speeches I made as far back as 2005 saying that we must always put our national interest first, whether in the need to deport dangerous terrorists or to have an immigration policy that works for our country. I believe that is consistent with remaining in the ECHR. However, as I found when Prime Minister, there are occasions when the ECHR makes judgments as it did on prisoner votes. It said that it was essential that we legislated instantly to give prisoners the vote; I said that I did not think that was the case and that it should be settled by the Houses of Parliament. The ECHR backed down. That sort of flexibility may well be necessary in future.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Kerr of Kinlochard Excerpts

2nd reading
Tuesday 21st November 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, we have a very nice tradition in this House of always warmly welcoming maiden speeches. We usually do it because we are a nice, polite House. In this case, we do it because we genuinely warmly welcome the Foreign Secretary to join us and we greatly admire the maiden speech he has just made. We genuinely do.

There is something wonderfully Alice in Wonderland and ironic about the fact that the noble Lord’s maiden speech is made in a debate on an implementing Bill that will implement a treaty that we have not yet seen; it has not been presented to us. We are going to debate the detail of a Bill that will put on the statute book the necessary changes, because it is assumed that we will agree that we should accede to the CPTPP. Of course, it is not an unrealistic assumption, because we in this House can do absolutely nothing to stop our acceding to the CPTPP—which is again nicely Alice in Wonderland.

Actually, I would not want to stop it—I think it is a very good thing that we are acceding to the CPTPP—but I do hope that the Foreign Secretary will find time to consider the paradox that we are stuck here on pre-Brexit arrangements for scrutinising and approving trade agreements even though, post Brexit, we no longer have as our trade negotiators the Christopher Soameses, the Leon Brittans, the Cathy Ashtons or the Peter Mandelsons. We no longer have the right, in the Council of Ministers, to give them a mandate; we no longer have a European Parliament scrutinising everything they do in a trade negotiation; and we no longer therefore have Select Committees in this House and the other place scrutinising very closely what our Ministers say in the Council of Ministers, with all of this done in public.

Since Brexit, trade policy has been a black box. Westminster is in the dark and Whitehall has taken back absolute control. It does not feel quite right to me. I do not suppose the Foreign Secretary will have the time, or possibly the inclination, to consider amending the CRaG Act 2010, but I hope that successor Foreign Secretaries will. The Alice in Wonderland arrangements are all very funny, but it is not right.

I also hope that the Foreign Secretary might consider why the International Agreements Committee of this House has so regularly called for the publication of a government trade strategy. Most grown-up Governments publish their trade strategies. I am a member of that committee, and we have repeatedly called for one. Not knowing what the Government are trying to achieve makes it quite tricky to work out, looking at each negotiation and its outcome, how far they have achieved their aim. I am not naive; I suspect that I have just described what some Trade Secretaries would regard as the best feature of our arrangement. Since it is not possible to say against any overall guideline whether they have done well, they can tell us that they have done jolly well.

As previous speakers have indicated, some Trade Secretaries have tended to do that a bit. As the noble Lord, Lord Razzall, said, most of the agreements that Ms Truss presented, for example, were simple rollovers of the existing pre-Brexit arrangements, but all her geese were swans. Most of them were perfectly respectable geese, but they had to be presented as swans. I hope the Foreign Secretary will seek to persuade his Trade colleague, who I think is more open to the idea, to listen to the recommendation from this place that the Government should publish an overall trade strategy. But let me reassure him that the task of seeing this Bill through the House will not be onerous and that accession to the CPTPP is a swan—or at least a cygnet that might, over time, grow into a perfectly respectable swan.

I heard what the noble Lord, Lord Lamont, said about what it is worth economically in the short term. The Government’s own impact assessment says that in the short term there will not be much economic benefit. Their economic impact assessment says it has taken full account of the likely dynamic—on which I agree with the noble Lord, Lord Lamont—and how the region is likely to grow. The impact assessment says that

“UK gross domestic product (GDP) could increase by the equivalent of £2.0 billion in the long run”

as a result of the CPTPP. It defines “in the long run” as by 2040. I agree with the impact assessment and those who say that all such long-range predictions have extremely wide margins of error, but it is important to remember that the Government thought that the central estimate of the likely financial benefit was £2 billion in the long term—in other words, about a third of 1% of GDP. That is not a lot. The reason is that we have existing free trade agreements with all CPTPP partners except Brunei and Malaysia.

But I believe that, over time, this agreement will deepen, widen and become genuinely significant, so I am glad that the Government have decided to get us on board. I hope that, during the course of our study of this Bill, the Government will set out for us how they see the future of the organisation. Do they believe, as I do—although I think the noble Lord, Lord Lamont, would disagree with me—that, to be effective, it will need to acquire some sort of permanent secretariat, possibly even a site? Do the Government believe that it will need to consider enforcement mechanisms? I do.

What is the government view of CPTPP accession and of the six outstanding applications? These include the Chinese application that, if accepted, which in my view is very unlikely, would be transformative—in my view very undesirably. The noble Lord, Lord Collins, was right to call for transparency on this. We need to know what the Government think is the future of the organisation we are getting into. Of course, it would be a perfect subject to be covered in a trade strategy document, which could also perhaps explore the wider issue of the future of the multilateral rules-based system, and whether it has a future or whether the future is bilateral and plurilateral arrangements like CPTPP.

I am with the noble Lord, Lord Lamont, on this. I am a free trader and I believe that the best for free trade is the widest-possible global rules: simple rules, but as wide as possible. But there are two obvious problems that he and I have to face: first, American protectionism. I warmly agree with what he said. It was free trading Republicans under Robert Dole who got the United States into the WTO, but that breed seems to be extinct, and their successors have destroyed the WTO court. The second problem is China, now the world’s number one trading power. Together with the rest of the global South, it does not mind global rules, but it does not see why they should remain the rules we set 75 years ago, in the very different era of Bretton Woods.

It has a point; we have been very slow to update the structures we built. Why have seven of the 10 heads of the WTO been Europeans, like all 12 heads of the IMF, with all 14 heads of the World Bank coming from America? There is room for new thinking on effective internationalism and on the institutions that should underpin a rules-based trading system. There is a perfect task for an experienced new Foreign Secretary to consider. Meanwhile, let us work on accession to the CPTPP and welcome his arrival in this House.

Execution of Alireza Akbari

Lord Kerr of Kinlochard Excerpts

Wednesday 18th January 2023 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I again hear what my noble friend says very clearly. He mentioned snapback sanctions: of course, in the light of the long co-operation we have seen with the JCPOA, I cannot go into further details, but, as my right honourable friend said—and I stand by this— we are in no way saying that the actions that we have taken will be the last that we will take in the current situation against Iran.

[Lord Kerr of Kinlochard (CB)]

I congratulate the Minister on the tone and content of his remarks. I think that he has encapsulated very well the feelings of the whole House: the revulsion of the House at this action in Tehran. I would, however, counsel him against the advice given by the noble Lord, Lord Cormack: it is important to retain diplomatic relations with one’s foes, perhaps even more important than retaining them with one’s friends. Such influence as we have may be limited, but if we withdraw our embassy, we bring such influence to an end and we betray our friends in the country in question.

I have, however, one question for the Minister. If an Iranian citizen, not a dual national, feeling under threat from the regime and having connections to this country, were to ask me how he could seek asylum and sanctuary here, what advice should I give? What legal and safe route is available to him? I know of none.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord, Lord Kerr, has great insight and, of course, anyone who has been involved with diplomacy will know that quite often there are occasions when you are sitting across the table from people whose views, policies and perhaps their own regime or Government you find pretty unpalatable. There are many occasions when I have sat and faced the irony of the Human Rights Council, where we have countries who clamour for membership and election to the council, but where one quick reflection on their human rights record would put it in total contradiction. The noble Lord, again, offers wise advice.

On the issue of safe routes et cetera, while it is very much the remit of the Home Office, the important thing is that the United Kingdom—certainly, this is something that I have always felt passionate about—has, throughout Governments of whatever political colour over many years, been a sanctuary for those seeking asylum and escaping the brutality of regimes around the world, and has provided support. That has to be at the core of who and what we are. In terms of the specifics of the situation that has arisen with Iran, I am sure that the noble Lord will respect that I cannot given chapter and verse here, but I note very carefully what he has suggested and, if there is more detail I can provide to him, I will certainly seek to do so.

Northern Ireland Protocol Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I have reached the same conclusion as the noble Lord, Lord Cormack, but via a slightly different route. I heard the noble Baroness and the noble Lord refer to talks proceeding amicably and constructively. The noble Lord, Lord Ahmad of Wimbledon, has regularly assured us from his own involvement in the talks that they are proceeding satisfactorily and are in no way being derailed by this Bill.

I am miles away from the action, of course—like the noble Lord, Lord Dodds of Duncairn, I would be very grateful if the Government could find the time to give us some reports on the talks from time to time—but I get a rather different impression of the view in Brussels. My impression is that there is not a great deal going on in these talks, and that the officials involved do not have the kind of instructions which give them discretion to do any negotiating. My impression is that British Ministers are not particularly hands-on, that they are not very closely involved in the talks and that, in fact, no real political input and impetus has been given as yet.

On the EU side, I think there is a natural tendency to wait and see whether the arrival of a new Government and a new Prime Minister in Britain will bring about any changes in the British position. The Commission has succeeded in persuading the member states that the CJEU cases against us can be left in limbo for the moment; a number of member states would have preferred to proceed to having these cases heard, but they stay in limbo and there seems to be a sort of consensus on that. But there is absolutely no pressure that I can detect among member states for any softening of Šefčovič’s mandate or any change in the instructions he is getting, perhaps partly because they are waiting to see whether there is some change in the instructions our people have. I detect no sign of anybody believing that Šefčovič’s instructions will change while the threat of this Bill hangs over the negotiations.

In my view—I repeat that I am miles away from the action, so I may be quite wrong—the only real debate among member states is whether contingency planning should be started on their side and whether it is this Bill reaching the statute book or actual use of the powers it contains that should trigger resort to action. The action would of course be the end of the talks and the necessary review of the terms of the trade and co-operation agreement. I think everybody believes that in Brussels. As the noble Earl, Lord Kinnoull, reminded us on our last day of Committee, we committed ourselves in the TCA to carrying out our obligations as in the withdrawal agreement, which include the protocol. So if we were to use the powers in this Bill or, as some say—I am among them—put this Bill on the statute book, we would be in breach of not just the withdrawal agreement but the TCA.

So I think the debate is about contingency planning for that eventuality, rather than for any change or softening of the EU position in the talks. Therefore, it seems to me, we should recognise that what we are doing here, if we were to pass this Bill, is setting ourselves up for a rather serious trade war with the EU and for the return of all the problems in Northern Ireland that will result from Northern Ireland no longer being a member of the single market. We will go back to a different form of frontier problem, from which the protocol was designed to have us escape.

So I reach exactly the same conclusion as did the noble Lord, Lord Cormack, but by a slightly different route. I do not think that the talks are going particularly well, and I hope that the noble Lord, Lord Ahmad, will act on the promise that he made on our last day in Committee to see if he could ensure that we receive progress reports on the talks. Though I am miles away from the action, it seems to me that, if we proceed with this Bill, we are heading straight into a thunderstorm that will sink the ship.

[Baroness McIntosh of Pickering (Con)]

Before the noble Lord sits down, could he go one step further and ask my noble friend the Minister, in responding to this debate, to say whether he agrees with the analysis of the noble Lord, Lord Kerr, which I do, that we would be in breach not only of the withdrawal agreement but of the trade and co-operation agreement? It would be very good to get that on the record at this stage. Will he just go so far as to press the Minister, in summing up, to say whether he agrees with his analysis?

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

My Lords, we have ranged once again, in a debate on one of the amendments, far and wide across the whole gamut of the protocol Bill and the protocol itself. In that context, I want to follow up on the speech of the noble Lord, Lord Kerr, who talked about the state of the negotiations, the technical talks, the discussions, the conversations or whatever they may be. As he rightly said, we are not au fait with the detail, and those of us whom the noble Lord, Lord Empey, referenced who deal with politics in Northern Ireland and represent people in Northern Ireland are not privy to the details either.

I think that it is correct, as the noble Lord, Lord Kerr said, that there appears to be no difference in the negotiating mandate of Commissioner Vice-President Šefčovič so far as the EU side of the negotiations is concerned. Indeed, that has been confirmed to me and, I am sure, to other noble Lords informally by people who are closer to the talks than many of us are. Of course, the Government’s position has been set out in the Command Paper, published in July 2021, and in the Bill, but so long as the negotiating mandate of the European Union negotiator is not changed, there can be little prospect for any positive outcome from the discussions, certainly not in the short term.

We can all agree that we need to solve this problem, and there are only two ways that it can be solved. It is either by negotiation or by action on the part of His Majesty’s Government. The danger of saying, “We’re not going to get anywhere in the discussions and we should pull or pause the Bill” is in what happens in Northern Ireland. What happens to the Belfast agreement as amended by the St Andrews agreement? What happens to the institutions? I have heard very little reference thus far from noble Lords who do not have a direct connection with Northern Ireland about the implications on the political and peace process in Northern Ireland.

The longer we do not have any outcome from negotiations, and if nothing is happening on the Government’s side on legislation, then the institutions will not be reformed, because there is not the basis for power sharing, when you have trashed one of the main strands of the agreement—strand 3, the east-west dimension—and when you have undermined the Northern Ireland Assembly through the removal of the cross-community consent principle. We have to address these matters.

While people may focus on what the outcome may be in terms of the withdrawal agreement and the trade and co-operation agreement—I entirely understand that—we also have to examine the implications on the Belfast agreement, on the St Andrews agreement, and on the peace and political process in Northern Ireland, which is in a very fragile state. The noble Lord, Lord Kilclooney, highlighted a recent example of where these things can go.

I urge your Lordships to examine and bear in mind the implications, if we do not get a negotiated outcome which is satisfactory. I share the analysis of noble Lord, Lord Kerr, that it does not look as if that is going to happen—certainly any time soon—and if we at the same time do not proceed with the Bill, where on earth does that leave the political process in Northern Ireland? It leaves it in a continuing state of limbo, which we have all agreed can be filled only by dangerous people—men of violence. We need to address these matters urgently.

[Lord Kerr of Kinlochard (CB)]

May I clarify something? My position is that there will be no progress with these talks until there is the involvement of high-level politicians from this country. I remember in the 1990s the attempt to move Congress from its support of the wrong side—in the British Government’s view—in Northern Ireland. I was ambassador and made a certain amount of progress, but the real progress was made only when Prime Minister Major and the then Minister of State, now the noble Marquess, Lord Lothian, took an active involvement in helping me to see the people one had to convince on the Hill. We need the involvement of senior British Ministers. I strongly agree with the noble Lord, Lord Empey, that we need the involvement of people from Northern Ireland. This must not be an agreement, if one is achieved, that is imposed on Northern Ireland. It has to be one that is owned by Northern Ireland.

However, my view is that there is no chance of persuading the Council of the European Union that it should modify Mr Šefčovič’s mandate while technical talks are going nowhere and there are no signs of any movement, or even active involvement, by the highest levels of the British political establishment. I do not mean that I think the talks are bound to fail; I mean that, at present, they are not succeeding.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I maintained a Trappist silence throughout all the earlier debates on this Bill. I may be prominent among those wishing I had maintained it when I sit down in a moment or two because I recognise that I speak from a position of having less knowledge of the political and economic background to this debate than perhaps anybody else here—certainly less than anyone who has spoken.

What has driven me to my feet is what seems a striking absence of any reference to Article 16; again, we heard it in earlier debates but not today. To my mind—I speak in this respect simply as a lawyer—it is custom-built to meet any legitimate needs, which there are, to adapt processes in the Province today. What is required of the protocol by way of rewriting treaties is in doubt, but the protocol does not pre-empt the Belfast agreement obligations and commitments on all sides. On the contrary, Belfast is the primary one of these two treaties, which are enforceable under international law.

Those who know much more about this than I do emphasise—rightly, to my mind—the third strand of Belfast, which concerns east-west trade within the UK internal market. Far from the protocol pre-empting what we as the UK are entitled to insist on under the Belfast agreement, surely it accommodates the crucial argument—let the politicians in Northern Ireland make, refine, emphasise and urge this—that the regulatory controls that the EU currently exercises under the protocol, as well as the intensity of their policing, are in fact quite incompatible with its obligation to observe the Belfast agreement. You have only to look at the Belfast agreement to see that we, the UK, are duty bound to fight against the long-term alienation—I forget the precise language—of any community. We did it for the nationalists in respect of language in Northern Ireland. Now we owe the unionists some obligation to try to reinforce the critical importance of the east-west trade link here.

I therefore have no brief for this Bill. The unionists say, “You need this to get back into the Assembly”. That is nonsense. They open their mouths far too wide but their legitimate interests should be—indeed, must be—protected. Do it under Article 16, which meets any imperative need of the day, and let the people of Northern Ireland specify precisely what is required by way of adapting the processes under the protocol. If there needs to be any adaptation of the language, let them deal with that too. As the noble Lord, Lord Howard, said in an earlier debate, do not be too theological about the language—just get the agreement to do what is necessary.

--- Later in debate ---

This clause also allows a Minister to make legislative changes that they consider appropriate for the purposes of implementing a relevant agreement with the EU. It is also vital in ensuring that we have the ability to promptly implement—

[Lord Kerr of Kinlochard (CB)]

Does Clause 19 not replace CRaG in respect of amendments to the protocol?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I have already said that the Bill does nothing to affect the procedures applying under the CRaG Act 2010. I have been clear on that and it is specifically in front of me as I speak.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I will not go into the speculative nature of what each devolved Administration will say, but we have great resilience and passion within our devolved Administrations and I am sure that, as discussions and negotiations progress, both the Government and your Lordships’ House will be very clear about what the Administrations think.

[Lord Kerr of Kinlochard (CB)]

The constitutional point is clearly the huge point here; mine is a minor addition. Would the noble Lord look at Clause 22(2)(a) and (b) and put himself in the position of an EU negotiator? Would he willingly come to an agreement with the British if they had just given their Ministers the power, without any parliamentary oversight, to make any provision they wish, notwithstanding that it is not compatible with the protocol or any other part of the EU withdrawal agreement?

As the negotiator contemplates trying to find practical solutions to make the protocol less burdensome, the negotiator is confronted on the other side of the table by a Government who are taking to themselves the right to change anything in the withdrawal agreement without consulting Parliament. I think as a minimum—and I put this very mildly—that does not improve the chances of the negotiations succeeding, which is why I think so many in Brussels believe that if we proceed with this Bill, the talks, the negotiations and the consultations will not succeed.

[Lord Ahmad of Wimbledon (Con)]

That was almost a rhetorical question being posed to me. What I can say in response is that the engagement we are having with the European Union is—as I have said before, and I would be very up front and honest if this was not the case—being done constructively. The EU understands and appreciates the basis of why we are seeking to do this. It also understands that this Bill is being scrutinised, as is happening this evening, and that we are continuing to work in terms of constructive engagement.

As I have said before, with the Commissioner visiting the UK, the engagement between my right honourable friend and Commissioner Šefčovič is in a good place in terms of the level of engagement, in both tone and substance. I cannot go further than that. The noble Lord is very experienced in all things diplomatic and, indeed, is a veteran of the EU Commission. I am not going to speculate on what an EU Commissioner or an EU negotiator will say because I have never been one.

Northern Ireland Protocol Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords—

[Lord Kerr of Kinlochard (CB)]

The big point about this clause is the one made by the noble and learned Lord, Lord Judge, supported by the noble Lord, Lord Campbell. We should not be writing into our statute book such extraordinary sweeping powers, to be exercised at the stroke of a pen, with no real supervision or scrutiny by the Executive.

I would like to speak briefly to the second important point, which is, in my view, the one made by the noble Lord, Lord Purvis of Tweed, when he spoke of the “chill effect”. I also found things I agreed with in the speech of the noble Lord, Lord Leigh of Hurley, rather to my surprise. The chill effect is real and will continue. Investors will be deterred from coming to Northern Ireland, and Northern Irish businesses will be deterred from investing, by the uncertainty which will not be resolved by the passage of this Bill but created by its passage. The effect of Clause 12, taken with Clause 22, is to enable the Minister to establish a different regime in Northern Ireland from the regime in Great Britain. The assumption might be that if the protocol falls, what results is the status quo ante: the UK rules. That is not the case. The Minister would be entirely free to produce whatever rules for Northern Ireland he thought fit. It is obvious what that uncertainty does to investment.

I am surprised at the silence of the DUP.

[Lord Dodds of Duncairn (DUP)]

We cannot get in.

[Lord Kerr of Kinlochard (CB)]

I am delighted that the silence may be about to be broken. It seems to me it would be odd to be insouciant about this uncertainty. The DUP may have been given assurances that only UK rules will be applied and nothing will be different, in which case I suppose it might believe such assurances. That would be a triumph of hope over experience, because we would not be where we are today—we would not have this Bill to discuss—if the DUP had not been betrayed and misled by the last Prime Minister but one.

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[Lord Ahmad of Wimbledon (Con)]

No, I think we are. That is exactly what we are seeking to do. It is clear that the noble Baroness remains unconvinced.

Turning back to the amendments themselves—

[Lord Kerr of Kinlochard (CB)]

I do not think it is clear; I do not understand. If the wish of the Government is to apply UK state aid laws in Northern Ireland—and that would be the wish of the noble Lord, Lord Dodds —why does the Bill not say that? Why, instead, does it import this uncertainty, which would be continuing far into the future, because the regulations applying in Northern Ireland would depend on the whim of the Minister, as the noble and learned Lord, Lord Judge, pointed out?

[Lord Ahmad of Wimbledon (Con)]

I have listened again to the noble Lord and, if I may, just for clarity, I will ensure that I get a full response to this. I will check with my officials again and provide the added clarity that the noble Baroness and the noble Lord are seeking. If that needs to be followed up in writing, I will, of course, do so as well. Ultimately, I stand by what I said earlier, that what we are seeking to do here is to address the specific issues that there are in practical terms.

My noble friend’s concerns about the scope of the Bill’s delegated powers were raised by other noble Lords. I hope that I can reassure my noble friend that the power may already be exercised only to make appropriate provision in connection with the exclusion of Article 10 of the protocol and the domestic provision that Clause 12 places on it. This provides a clear and limited framework for what the power can do; providing further constraints would provide additional uncertainty to businesses and consumers. In this case, it would put off, and potentially circumscribe, the ability to facilitate an effective domestic subsidy control regime that applies to the whole of the UK, leaving Northern Ireland being treated unfairly compared with the rest of the UK.

The Government are aware that regulations with retrospective effect are exceptional. However, it is clear that the continuing application of the state aid acquis in Northern Ireland has led to a sense of disconnection for many people, particularly the unionist parties, and puts the re-establishment of power-sharing arrangements at risk. As the EU state aid acquis is removed, it may be necessary to ensure that actions granted under the regime are appropriately reconciled with the UK regime. Removing Ministers’ ability to make retrospective provision, which was mentioned by several noble Lords, could undermine the Government’s ability to ensure a single, coherent, domestic subsidy control programme throughout the UK. It would also, in the Government’s view, create further uncertainty for businesses in Northern Ireland and across the UK. Any such regulations would already be subject to the higher level of scrutiny in the House. I know that my noble friend is concerned about creating uncertainty for investors, to which he alluded in his contribution. I hope he is reassured by what I have said: that the Government’s intention in this case is only to provide certainty. There will be time to examine any subsequent regulations.

The amendment also seeks to ensure that the power can make incidental and transitory provision. I am happy to be able to inform my noble friend that this is already the case by virtue of the operation of Clause 22(2)(e). The amendment also seeks to make necessary regulations subject to annulment by Parliament. We will, of course, debate this further when we reach Clause 22, but the Government’s proposition is that this is appropriate when regulations are making retrospective provision or amending an Act of Parliament, but that it would not be the appropriate level of scrutiny for other instruments making what are likely to be smaller or more technical free-standing provisions. I hope, for these reasons, that my noble friend will be minded to not move his amendment.

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[Lord Kerr of Kinlochard (CB)]

I keep hoping that the noble Lord, Lord Cormack, will say something with which I can disagree—but he keeps on letting me down. I strongly support Amendment 20, of course, for the obvious reasons that I need not repeat. I also support Amendment 21B, put forward by the noble Lord, Lord Hain, and strongly supported by the noble Lord, Lord Deben.

I ought to declare an ex-interest. I used to be a director of a power company and, if I remember right, Northern Ireland is a net importer of electricity but a large net exporter to the Republic. The trade with the Republic is less than the trade that comes in from Scotland on the interconnector. It follows that, if the Bill goes through in the form it is in now, unamended by the noble Lord, Lord Hain, the collapse of the common electricity market will do very grave damage to the Republic as well as to Northern Ireland. For Northern Ireland, it is important for security of supply and to keep costs down; in the Republic, it is much more important because the Republic is a net importer; it is very short of generating capacity.

So I say to the Minister that I really hope he will buy Amendment 21B from the noble Lord, Lord Hain —I cannot see any reason why he should not. If he does not buy it, would the Government please produce before Report a clear statement of the discussions they will by then have had, if they have not already had them, with the Government in Dublin about how the crisis that this would create for the Government in Dublin is to be avoided or mitigated.

I will also add a word on the very important point made by the noble Earl, Lord Kinnoull. He made it very gently. There is no doubt that the European Union means what it says when it says that, if we put this Bill in its present form on our statute book, the TCA bets are off. We are heading for a trade war if we do this. I hope the DUP will bear that point in mind because, although the trade war would be acutely damaging to the whole United Kingdom, it would do particular damage to the economy of Northern Ireland.

[Baroness Hoey (Non-Afl)]

I understand what the noble Lord is saying—that the European Union would likely invoke some kind of trade war—but does he understand that, for many people in Northern Ireland, this Bill is the only thing that is giving them some hope that there will be real change? A trade war is very worrying, but there are also very worrying signs in Northern Ireland of deep unrest, concern and instability. That is why the suggestion from the noble Lord, Lord Cormack, that we should get rid of this Bill would be deeply damaging to relations in Northern Ireland.

[Lord Kerr of Kinlochard (CB)]

With great respect to the noble Baroness, that is not what the public opinion polls are telling us. At present, they seem to be telling us that what a majority of people in Northern Ireland, and a great majority of younger people in Northern Ireland, are looking for is certainty, and they are reasonably content with the protocol.

[Baroness Hoey (Non-Afl)]

The opinion polls told us that remain was going to win the referendum—they were very wrong.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I have no expertise to match that of the noble Baroness. But I do think we need to remember that, in the last Northern Ireland election, the voting for the DUP was about one in five of those who voted—and, since the turnout was about 60%, it was a pretty low proportion of the electorate. It is worrying, or at least curious, that the DUP, which constitutes, on its voting last time around, 0.4% of the UK electorate, should be able, it seems, to wag the dog. It is a very small tail that is wagging the dog—and, if we all end up in a trade war with the European Union, it will be the tail that gets the most pain.

[Lord Deben (Con)]

Will my noble friend accept this, just to get the two noble Lords together—if I may put it like that? The fact is that nobody in Northern Ireland is going to accept measures that turn the lights off. Most people in Northern Ireland actually want to do something about climate change; the polls are absolutely clear about that. This Bill will mean that we will not be able to fight climate change properly, and the lights are certainly in danger—and, if the lights went off, I do not think that people would thank the DUP for that.

Northern Ireland Protocol Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

[Lord Kerr of Kinlochard (CB)]

I agree that external trade is a reserved matter, but here we are talking about trade inside the United Kingdom—as well as trade inside the single market of the European Union, of course. I do not think it follows at all that one can say there is no role for the Assembly because external trade is a reserved matter.

I would love to support the amendment in the names of the two noble Baronesses. I agree with the spirit of it. It is extraordinary how, throughout this saga, things have been done to Northern Ireland without Northern Ireland being fully consulted or even informed. It is extraordinary, when you think about it, that the protocol was concluded without the involvement—I want to embarrass him now—of the noble Lord, Lord Caine, who knows far more about these issues than most of us do and has a judgment that we would all respect. That should have been brought to bear.

I hesitate to criticise the noble Lord, Lord Frost, who is busy with his emails, but, if he would like to listen, I will criticise him. It would have been good if he had found the ability to spend more time in Northern Ireland while he was negotiating. It would have been great if his master, the then Prime Minister, had been able to spend some time trying to understand the issues and seeing people on the ground, but it is an astonishing fact that Michel Barnier had more direct personal experience of Northern Ireland than the noble Lord, Lord Frost, had. That was because Barnier had spent time there doing jobs for previous presidents of the Commission.

I feel that the syndrome of imposing things on Northern Ireland, perhaps under cover of talk about reserved matters, which I disagree with, has been damaging to the United Kingdom and, of course, to Northern Ireland. I would love to support these amendments, and of course I would do so. But it would not make an illegal act less illegal if the Northern Ireland Assembly voted for it, so what are we talking about here?

I caused the Minister to look askance when I said that we are talking about a pig of a Bill. The Minister thought that was an indelicate reference. However, what we are doing here is trying to put lipstick on the pig. It will still be a pig even if this amendment is approved. If it were put to a vote, of course I would vote for it, but my general feeling is that we know what we have to do with this Bill. The noble Lord, Lord Cormack, has correctly pointed out that what we are engaged in now is a waste of time because I am confident that at the end of the day, we will do what we have to do to this Bill. I hope the end of the day comes soon.

[Lord Davies of Stamford (Lab)]

My Lords, for a number of years I was shadow Secretary of State for Northern Ireland. I have not been involved in recent political discussions in the Province. In a sense, I have come back to the subject afresh today. It certainly keeps all its fascination. We have just heard two immensely important contributions to the debate by the noble Lords, Lord Kerr and Lord Bew. The noble Lord, Lord Bew, dealt clearly, decisively and definitively with whether or not trade is a reserved matter. We must be grateful for that analysis, which I hope will guide us in dealing with this Bill.

The Bill is an extraordinarily unpopular document, is it not? It is quite difficult to find anybody really prepared to defend it. The DUP is obviously very much opposed to it. We have heard this afternoon from people who are close to the DUP’s leadership. The European Commission has launched infringement procedures in relation to the British Government’s activity over this Bill. The British Government do not seem to be very convinced of the virtues of the Bill. Certainly no one this afternoon has made a strong defence of the Bill.

Against that background, I rather agree with the noble Lord, Lord Cormack. It is quite unlikely that the DUP will do a U-turn; it would be a humiliating thing to do. Therefore, one must assume that the Bill in its present form does not have very far to go. That is not surprising because—and the reason I really oppose this Bill—it seems contrary to the essence of parliamentary democracy. The principle which underlines our whole system in this country is that the law must be made by the legislature—the legally elected representatives of the public. It is their responsibility to make laws; it is not the responsibility of the Government to make laws, nor is it desirable that they should try to do so.

Many of the provisions in this controversial protocol Bill reveal that there is an ambition for the Government to rewrite the law themselves. I look at the overview of the Bill in the very helpful summary produced by the Library. It says that one of the purposes is

“giving ministers delegated powers to make new provision in domestic law ‘in connection with’ ‘excluded provision’”;

in other words, the Bill declares itself as being in the business of making law and imposing it on the public, which is quite contrary to all democratic principles, and we should be quite upset about it.

This is something which has disfigured European history in the last 100 years. A number of people, from Mussolini to Hitler to Marshal Pétain, have adopted this course of deciding to get through an assembly, which would be reasonably compliant, a Bill entitling the Government to write the law themselves in the future. That is what happens to democracies if they are under that kind of attack. We should not in any way be party to that.

The House of Lords Library’s summary of the situation makes it clear that, in this case, the executive branch is deciding to write law and change international treaties more or less at the drop of a hat. That is obviously not something that anyone in this House could tolerate, and we should therefore think about this extremely carefully before it proceeds. We should make it absolutely clear that the Government cannot get away with asking for power in an enabling Act to simply write the future statute—not making this clear would be contrary to what we should do in this place.

--- Later in debate ---

[Lord Bew (CB)]

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

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

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

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

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

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

[Lord Kerr of Kinlochard (CB)]

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

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

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

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I yield to none in my respect for the noble Lord, Lord McCrea, and the way he pursues this argument. It was an argument that we had earlier in our debate, and I share his distaste for the protocol, as he knows. I do not agree with the noble Lord, Lord Hannan, that there is no democratic deficit. I think there is a real democratic deficit and it could be put right. It would be good if the noble Lord would think about the suggestions made by the noble Lord, Lord Hain, earlier in our debate. The argument that the protocol is inconsistent with the Good Friday agreement comes across rather badly from those who opposed the Good Friday agreement. I myself was strongly in favour of the Good Friday agreement and I was sorry to see the DUP against it at the time. It is hard to sustain the argument now, in any case, given that all the parties to the withdrawal agreement—in which the protocol rests—do not agree with it. The United Kingdom Government do not buy the argument that the DUP are making—or they have always, up to now, not bought that argument. Although I understand the concerns the noble Lord puts forward, I do not think it works as a matter of law or that the Gibraltar precedent—although he is quite right about it—is relevant.

[Lord Hain (Lab)]

Will the noble Lord accept a small intervention to follow up on the point he made about the democratic deficit? I agree with him and he agrees with me on it. Would he confirm that Norway, for example, does not have Ministers in the Council of Ministers or direct representation in the European Parliament because it is not in the European Union, but does have consultative rights? It is consulted on all EU single market matters. Northern Ireland could be consulted in a similar way.

[Lord Kerr of Kinlochard (CB)]

I so confirm.

[The Earl of Kinnoull (CB)]

My Lords, I ask the Minister a more technical question about the interrelationship between the trade and co-operation agreement and the withdrawal agreement. The European Affairs Committee spent a very long time writing a report, which came out last December, about trading goods. We were very careful to make sure that we did not talk about the Northern Irish situation for two reasons. First, we have our own sub-committee for dealing with that. Secondly, it was horribly complicated.

I should like some comfort on a problem that would arise should some kind of good head from Great Britain to Northern Ireland. For the purposes of the Minister’s powers, it is a Northern Ireland good. However, it is, at the same time, latently a TCA good for the purposes of moving across an EU border. An immediate set of complications arises from this. I would, therefore, be grateful for the Minister’s thoughts on what the interrelationship is between the TCA and the withdrawal agreement on goods in general. I would also be grateful for some comfort that when Ministers are thinking about exercising all the powers that this selection of clauses would give them, they will have do so in regard to all the relevant various international agreements we have. The TCA is not our only agreement with the EU.

Pakistan: Flood Relief

Lord Kerr of Kinlochard Excerpts

Wednesday 7th September 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend is correct: we need to make sure that we leverage all levers. I have mentioned the United Nations, and the Commonwealth is of course a very important institution. Some of Pakistan’s near neighbours are members of the Commonwealth and have stood up support. Other members of the Commonwealth which are part of the industrialised nations have also lined up support. What is important, as I have said to the Pakistanis, is a detailed assessment of exactly what is required. That is why, with the DEC standing up its funding requirements, the immediate need is to ensure that funding can be allocated to the specific priorities. I will be speaking to other Commonwealth members as well as the wider UN family to ensure that Pakistan’s needs are met not just for the short term but the medium and long term.

[Lord Kerr of Kinlochard (CB)]

Given the scale of this disaster and our many links to Pakistan, is it very good that the Disasters Emergency Committee is running an appeal. I commend the Government for agreeing to match the funds raised by the appeal. However, when I last looked, the Government had put a ceiling of £5 million on the extent to which they would match-fund. Given the scale of the tragedy, that seems a very low ceiling. I hope that the Government will be ready to raise it.

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I said earlier, we are making assessments, and I hear what the noble Lord has said about the current £5 million ceiling. According to my most recent figures, the DEC fund has already raised in excess of £16 million, which includes our match funding. Of course, as we look at Pakistan’s priorities, the Foreign Secretary and I will certainly be considering what else we can give priority to, including further DEC funding support.

Working Practices (International Agreements Committee Report)

Lord Kerr of Kinlochard Excerpts

Thursday 19th May 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I congratulate the noble Lord on his excellent concluding question. I am a member of the International Agreements Committee and should start by paying tribute to our chairman, the noble Baroness, Lady Hayter, and her predecessor, the noble and learned Lord, Lord Goldsmith, for their work on this dossier, with the very considerable help of our former legal adviser, Alex Horne, and our clerk. The exercise of working practices, though I dreaded it, is being well done by the committee and I congratulate the chairman.

I also think that the noble Lord, Lord Oates, is a little hard on the chairman’s achievement in securing today’s exchange of letters with the noble Lord, Lord Grimstone, which settles the issue about which the right reverend Prelate was concerned. I agree that it does not go as far as we would have liked, but it is well worth having. It is good to see the relationship between the committee and the Department for International Trade placed on a more solid foundation, so I genuinely congratulate the chairman.

As the prisoner at the bar says, I need to confess to some previous convictions. I was a Sir Humphrey in my time—a Foreign Office Sir Humphrey—so I am now a poacher where once I was a gamekeeper. In the Foreign Office, I was responsible for a time for the operation of the Ponsonby rule. Ponsonby, 98 years ago, committed the Foreign Office to enable Parliament to exercise supervision of agreements, commitments and undertakings involving international obligations of a serious character, even if they were not given treaty form. In my time, which was a little less than 98 years ago, we were still honouring that rule. Occasionally, it led to disputes in-house as to whether we needed to put an agreement forward. Occasionally, it led to serious discussions about whether security considerations were involved. However, it was being honoured in my time in Whitehall and therefore, like the noble Baroness, Lady Hayter, I was very surprised to hear it asserted at the Dispatch Box a few weeks back that the Ponsonby rule had been overtaken by the CRaG Act.

As we know, CRaG covers treaties, but Ponsonby also covers non-treaties. I am sure that while this House was considering the CRaG Bill it was never suggested that, if we passed it, we would, in doing so, kill off Ponsonby. That was not suggested at the time. I do not think we killed off Ponsonby. I do not think we should. The worrying thing is that the Government are now acting as if we did, and I am pretty sure they should not.

People have mentioned the sort of non-treaty agreements which ought to be drawn to the attention of Parliament. They gave examples such as the Rwanda agreement, which in my view represented a breach of the refugee convention. They mentioned the agreements with Sweden and Finland on defence. I do not know precisely what they say. I do not know what form they took, but it does not really matter; it seems our word has been pledged. That may be a good thing—I personally think it is—but Parliament ought to be aware, and these texts have not been laid before Parliament because they were not treaties and the Government’s interpretation is that if CRaG does not apply, then they do not need to do anything. I would also mention the defence agreement with Australia and the United States. I do not know what it says, but it sounds pretty binding and I would have thought it ought to be laid before Parliament. These examples are all considerably more significant than the many trade treaties which the Department for International Trade is laying before Parliament and which the International Agreements Committee is trying to scrutinise.

That is why the report suggested, at paragraphs 82 and 83, what we should do about non-treaties. That is why I was so surprised at the letter, which has been referred to today, received last week from the FCDO Minister of State, Amanda Milling. I am torn about this letter, because as a former Sir Humphrey, I think it is fabulous. It is a masterpiece of elegant, obscurantist obstructionism, with just the slightest dash of the otiose—marvellous. To quote her:

“The Government does not accept that there has ever been a constitutional convention in the UK whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny.”


Did noble Lords see what she did there? Did they spot the “routinely”? We never said that non-legally binding arrangements were “routinely published”. They never were; Ponsonby never said they would be.

There is a mass of documents exchanged between our Government, our ministries our embassies and other Governments, including exchanges of letters, memoranda of understanding and agreed minutes. That is the currency of daily diplomatic exchange. I recall as an ambassador status of forces agreements and their amendment for different exercises, and privileges and immunities for premises or people—all this stuff that takes some documentary form. But it would never be the committee’s intention that the Government should be required to submit such material for parliamentary scrutiny. Some of it was barely scrutinised by Ministers in my time. I was even allowed to sign off some of it myself because it was so trivial.

Paragraph 82 of our report says:

“We accept that it … would be disproportionate, to notify us of every Memorandum of Understanding that the Government enters into. However, there are some significant agreements which should be notified and sent to us for review”.


That is the essence of our proposal. The Sir Humphrey who drafted the Milling sentence that I read out was creating a straw man—a red herring. The sentence is perfectly correct, and it is totally misleading and irrelevant. That is the mark of the maestro.

The letter goes on to say:

“The Government has acknowledged that it may be appropriate to draw to Parliament’s attention non-legally binding arrangements which raise questions of public importance. Ministers consider this on a case-by-case basis.”


Ah, quite—and so they should. But hang on, what are the criteria they are using as they consider this case by case? That is why our report suggested a set of criteria:

“Notification and deposit should be required only if an agreement … is politically or economically important … imposes material obligations on UK citizens or residents … has human rights implications … is directly related to a treaty; or … would give rise to significant expenditure.”


If the Government do not like our principles, we will change them or have some more—but they have to reply. They have to tell us what their proposed criteria are. Then we can start a negotiation and engage on this. That is what this is all about. They cannot just say, “No, no—we’ll do it case by case.” That is a non-answer, although Sir Humphrey would have been extremely proud of it.

I think Sir Humphrey might also have been quite pleased with the following sentence, which is the last thing I will quote, I promise:

“The relevant factors in deciding whether and how to draw a non-legally binding arrangement to the attention of Parliament will vary according to the arrangement in question, and may include—but are not limited to—human rights considerations.”


I repeat: “may include, but are not limited to”—masterly. I am proud of my old department.

Being serious for a moment, I do not think this will quite do. I really do not. I think we are entitled to ask the Executive to engage. It is in all our interests to reach a sensible understanding here, as we have with the Department for International Trade. We did not get all we wanted with that department, but we now have a clear basis on which to go forward, whereas all we have from the Foreign Office is this refusal to meet us and the rejection of our criteria, rejection of the concept of criteria and refusal to start a discussion. I really do not think that will do. Parliament has powers in matters of this kind, but it would be infinitely preferable not to have to exercise them. We owe it to the Minister, just as we owe it to ourselves, to ask him to go back to the Foreign Office and ask it to have another look at this issue.

Queen’s Speech

Lord Kerr of Kinlochard Excerpts

Wednesday 18th May 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

The Queen’s Speech said that we

“will lead the way in championing security around the world.”

In “Yes Minister”, the Permanent Secretary would have said, “Very bold, Minister”. It is quite a bold assertion. We used to be good at understatement. Conservative Foreign Secretaries such as Alec Douglas-Home, Peter Carrington, Geoffrey Howe and Douglas Hurd tended to speak rather softly, although they still carried quite a big stick. They tended to get their way. The stick is now a little smaller, as the noble Baroness, Lady Davidson, convincingly reminded us, but we seem to be shouting rather loudly and not getting our way quite so often.

I want us to be trusted. Trust is quite a good thing to have. I want people to believe that, if they conclude a deal with us, that deal is likely to stick. This makes it easier to conclude a deal. I would like people to think it unthinkable that we would break a treaty commitment and start a trade war. I must say to the noble Lord, Lord Frost—I am sorry he is not here to hear it—that this House still champions the rule of law. I think we showed that during the passage of the then internal market Bill and, if we have to, we will show it again in connection with a Brexit Bill.

The Queen’s Speech does not say anything at all about development; the noble Lord, Lord Collins, was absolutely right to pick that up. The slick brochure published by the Foreign Office this week is unconvincing and alarming. It is alarming because it is clear that we are switching aid away from multilateral to bilateral, back to more tied aid. We will give less support to the international agencies fighting the causes of global insecurity, such as famine, disease, unrest and mass migration. Three out of every four cross-channel migrants and refugees come from a country fighting severe famine right now, but it seems from the Foreign Office publication that we plan to cut back on what we do to stem the flow at source—although, of course, the Queen’s Speech said that we will be hard on refugees. Apart from the moral imperative, is it not in our self-interest to do more, not less, through the multilateral agencies?

The noble Lord, Lord King, was absolutely right—as he usually is—in pointing to the imminence of the global famine. It is here already, but it is going to get much worse. Before Putin’s invasion, 80% of Egypt’s wheat came from the Black Sea; 75% of Sudan’s; 75% of Lebanon’s; 50% of Libya’s; and 50% of Tunisia’s. Global stocks were already at their lowest for seven years. The World Food Programme was already telling us that we were facing an unprecedented global hunger crisis before Putin’s invasion. As the noble Lord, Lord King, pointed out, protectionism in India and Indonesia —export bans—means that it is not just wheat that will be in very short supply in the Middle East. There are 9 million people in Tigray who are starving right now. The WFP says that there will be 20 million in Sudan within three months.

Should we not be urgently doing more, not less, for the WFP, the FAO, the UNDP, the UNHCR and the WHO? The WHO says that Covid has already killed 6 million and is still killing 1,000 a day. Those are probably underestimates, because the statistics are patchy. Some 75% of us are fully vaccinated, but only 23% are in Uganda, 19% in Ghana, 6% in Tanzania and 5% in Malawi. These disparities shame and threaten us. Do we not owe it to our Commonwealth friends and to ourselves to do more to help them do better?

It is not just them. In tragic, war-torn, blockaded Yemen, only 1% of the population has been vaccinated at all. Are we using our undoubted influence in Riyadh to persuade the Saudis that lives must be saved in the Yemen? I hope so, but I do not know.

The key global responder is the WHO. Some 80% of its finance comes from voluntary national contributions. Are we up there as global leaders showing the way? No, we are way down the pack. Up at the top are Germany and Japan; we are down with New Zealand. Global Australia contributes more than global Britain; the Gates Foundation contributes more than global Britain. Should we not put that right? It is a global pandemic and, if we aspire to be champions of global security and lead the way, should we not be doing something about global insecurity and its root causes?

My last point harkens back to my first. When working in Washington and Brussels, I was lucky enough to witness a virtuous circle: the more the White House trusted us, particularly because of our policies on Northern Ireland through John Major and Tony Blair, the more our perceived influence in Washington strengthened our hand in Brussels—and the more we were seen to deliver on common purposes with our friends in Europe, the more the White House listened to us. I worry about the very real risk of a vicious circle, which works the other way. Picking fights with the 27, particularly over Northern Ireland, is the best way of losing friends in Washington. The more we drift away from both Europe and America—

[Viscount Younger of Leckie (Con)]

My Lords, it is a very long last point and I do urge the noble Lord to conclude.

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[Lord Kerr of Kinlochard (CB)]

It is a very important last point. The more we drift away from both sides of the Atlantic, the emptier our talk of leading the way. Effective foreign relations are built on trust, perceived honesty and reliability, so it is important that deals that are done stay done deals. No one ever doubted the word of Home, Carrington, Howe or Hurd: pacta sunt servanda.

--- Later in debate ---

[Lord Lilley (Con)]

My Lords, on the “Today” programme on Radio 4 on Friday the Irish Foreign Minister, Simon Coveney, asserted that “the EU cannot and will not renegotiate the Northern Ireland protocol”. In fact the EU can, should and must renegotiate it. It can renegotiate because any treaty can be renegotiated, and many are. It should renegotiate it because the sole justification of the protocol was to uphold the Belfast agreement, and the first article is that nothing in the protocol shall prejudice the Good Friday/Belfast agreement. As the former Solicitor-General, Sir Robert Buckland, said yesterday,

“that means … that the … agreement takes primacy over the protocol”,—[Official Report, Commons, 17/5/22; col. 554.]

so the British Government, as co-guarantor of the agreement, have a duty to renegotiate the elements of it which are undermining the Belfast agreement.

The main point I want to make in the five minutes that I have is that the EU must renegotiate the protocol. It must because, legally, the protocol is not a permanent arrangement: it must eventually be replaced or it will lapse. That is not my opinion or the Government’s opinion; it was the whole basis on which the EU negotiated the withdrawal agreement: that, under Article 50, it did not have the competence to negotiate a permanent trade and co-operation agreement with a member state. Article 50 allowed it only to negotiate the divorce terms and temporary or transitional arrangements to smooth the departure of a member state. It said that a permanent trade relationship could be agreed under Article 218 only with a non-member state. That is why the EU refused Mrs May’s request to negotiate the trade and co-operation agreement in parallel with the withdrawal agreement. The UK had first to leave the EU, agree to sign the withdrawal agreement and become a non-member state before negotiations on a permanent trade and co-operation agreement could even begin, so how come there was a trade and co-operation agreement covering Northern Ireland?

The Northern Ireland protocol could be agreed under Article 50 only because and so long as it was temporary; it was needed to smooth departure, not least because there was no certainty that a permanent trade and co-operation agreement between the UK and the EU would be in place by the time we left the EU. That should not be news to us because the former Attorney-General Geoffrey Cox explained to the House of Commons that,

“article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states”. —[Official Report, Commons, 3/12/18; col. 547.]

He went on to say that, if traders in future felt disadvantaged by the protocol, they should

“beat a path to the door of the Commission and the Court … to say, ‘Didn’t you say that article 50 is not a sound legal foundation for this arrangement?’ And I tell you frankly, Mr Speaker, they are likely to win.”—[Official Report, Commons, 3/12/18; col. 555.]

The original protocol itself spelled out that

“the Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom”.

That is equally true of the protocol in the final withdrawal Act, since it, too, is based on Article 50. Paragraph 8 of Article 13 of the protocol itself specifically envisages the replacement of all or parts of the protocol by a subsequent agreement. Nor does the provision in the final protocol for approval or rejection by the Northern Ireland Assembly alter the issue; even if the Assembly were to endorse the arrangements set down under the protocol, which was an agreement between the EU and the whole UK, not just Northern Ireland itself, that would not change its transitional nature.

The temporary nature of the protocol is a matter of EU law. I am puzzled that its author never remembers that nowadays. He and all the other spokesmen of the European Union in this House suffer from a selective memory and treat this protocol as if it is to be permanent and cannot and should not be changed, even if undermines the Belfast agreement, which was the very purpose of that protocol. Of course, I give way to the noble Lord, my former good friend.

[Lord Kerr of Kinlochard (CB)]

It is just possible that the noble Lord is confusing two versions of the protocol —the one negotiated by the previous Prime Minister and the one negotiated by the present Prime Minister. The previous Prime Minister’s protocol was, on the face of it, clear, straightforward and temporary. The present Prime Minister’s protocol is permanent.

[Lord Lilley (Con)]

The transitory nature of both protocols arises from Article 50, which the noble Lord himself wrote—and if he wishes to repudiate that and say that Article 50 does not mean what the European Union says that it means, that would be an interesting thing to do. If the European Union were now to change its view and say, “We were conning you and having you on when we said that we couldn’t negotiate a permanent arrangement under Article 50”, it would show that the original treaty was based on negotiations in bad faith, and that would give us a basis to seek renegotiation.

More positively, we should look to the EU to negotiate and renegotiate with the same spirit and the same objective that it did the original protocol: to uphold the Belfast/Good Friday agreement in all its parts. I welcome the fact that the British Government are moving forward on that basis.