Northern Ireland Protocol Bill

Debate between Lord Ponsonby of Shulbrede and Lord Ahmad of Wimbledon

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has indeed been a very wide-ranging debate, but I will comment specifically on the amendments themselves.

The DPRRC refers to the power contained in Clause 18 as “strange” and notes that

“Despite its being highly unusual”


there will be “no parliamentary oversight” whatever. This was the subject of some debate in another place, with much head-scratching as to what the Government were trying to achieve. Indeed, we cannot know that, because they have not offered a clear justification. A former head of the government legal service, Sir Jonathan Jones KC, described this as a “do whatever you like” power, but why is it needed in the first place? We have no definition of “conduct”. Can the Minister have a go at giving us a definition today? If that is not possible, can we have a detailed explanation ahead of Report?

In the Commons, the Minister tried to insist that concerned MPs had misconstrued the intent and that Clause 18 simply makes clear that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation. I cannot remember any other legislation where the Government have felt it necessary to clarify that Ministers are acting lawfully. Until recently, we took it for granted that this was always the case. Therefore, is this power an admission that the Government’s approach to the protocol is incompatible with international law and, as a result, in conflict with the Ministerial Code’s requirements to comply with the law?

There were a number of very interesting contributions in this debate. I highlight that of the noble Lord, Lord Empey, which was very constructive, about bringing into the process which is being embarked on by the UK Government respected people from Northern Ireland. I am interested to hear the Minister’s reaction to the proposals made by the noble Lord. The noble Lord, Lord Kilclooney, gave a rather chilling example of the stakes we are dealing with and how important it is that we take every opportunity we possibly can to resolve the current position. This has been an interesting debate, and I look forward to the Minister’s response.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, I thank all noble Lords who have contributed to the debate on the amendments and the wider context. The noble and learned Lord, Lord Stewart, the noble Lord, Lord Caine, and I always look down the list to see when the first group in Committee will be. We know that the clock will strike an hour because of the context that will be set in relation not just to the amendments in front of us but opinions on the particular Bill. Like the noble Lord, Lord Ponsonby, I will focus on the specific amendments. Where I can add a degree of Ahmad colour, I will seek to do this in the best way possible.

As I and my colleagues have said, to pick up on a key point on the ultimate nature of the Bill, the reasoning behind the Government’s approach is that the Bill is consistent with our obligations in international law and supports our prior obligations to the Belfast/Good Friday agreement, as has been said in various parts of today’s debate—and very eloquently by my noble friend Lord Lilley.

I will begin with Amendment 36, tabled by the noble Lord, Lord Purvis, on the issue of the powers. In the Government’s view, Clause 18 is not an extraordinary power. It simply makes clear, as would normally be the case, that Ministers are acting lawfully in this case. This point was made by the noble Lord, Lord Ponsonby, and others and I will attempt to put some colour on this—I do not know whether it will be to noble Lords’ satisfaction. Clause 18 is included because the Government recognise that the Bill provides, in a way that is not routinely done for other legislation, for new domestic obligations to replace prior domestic obligations that stem from our international obligations. Those international obligations are currently implemented automatically by Section 7A of the European Union (Withdrawal) Act 2018. That conduit pipe currently constrains—and in the Government’s view could cause confusion in the future—how Ministers can act in support of the Bill. The Government put forward that Clause 18 is to provide clarity on that point.

I note the DPRRC’s view on the issue of delegated powers, which the noble and learned Lord, Lord Judge, highlighted again in his contribution. However, it is the Government’s view that the power being proposed here is within the normal scope of executive action. To provide a bit more detail, this would include, for example, direct notifications from Ministers to the EU. While I am sure—I am going to hazard a guess as I look around your Lordships’ House—that I may not have satisfied every question on that, I hope that that has provided a degree more detail.

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

This is turning into a very long letter. I think I am going to get something from the Box which says, “Minister, do not commit to writing anything ever again.” But I know what the noble Lord has asked of me.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Minister has been put in an impossible situation. I thank all noble Lord who have spoken in this debate. It is a hard act to follow. We have had the noble and learned Lord, Lord Judge, talking about extraordinary legislation and quoting from the Proclamation by the Crown Act 1539, the noble Lord, Lord Pannick, talking about wasting the Committee’s time and then using that very legal words “otiose” when comparing Clause 22(1) and Clause 22(3). We have had the noble and learned Baroness, Lady Butler-Sloss, talking about never seeing so many Henry VIII powers in her time in Parliament. The noble Lord, Lord Purvis, asked a number of questions, including one we have heard just now, and the noble Lord, Lord Dodds, very relevantly asked about the reason that there is an exception in Clause 22(3) about border infrastructure on the north-south border, so I look forward to seeing this letter as well. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it has been a short debate which has gone over some territory that we have covered a number of times already. The noble Lord, Lord Hannay, referred to putting the cart before the horse and my noble friend Lord Murphy described this as a pointless and daft Bill—but je went on to give some very constructive suggestions about how to move forward with proper negotiations as we come up to the 25th anniversary of the agreement.

I will withdraw Amendment 56, but I notice that the noble Lord, Lord Ahmad, was diplomatically opaque when he said that he would update the House at an appropriate time, whereas we heard from the noble Baroness, Lady Suttie, earlier this evening that it may well be later this week.

[Lord Ahmad of Wimbledon (Con)]

While there are discussions going on, I do not want to anticipate which department will give a Statement. I want to be definitive, so I do not in any way want to give misleading information or information that is not yet correct. That is why I was being “diplomatically opaque”, as the noble Lord called it.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendments 65 and 66 would make most regulations under the Bill subject to the affirmative procedure and strip out supplementary provision which would become redundant as a result.

As we discussed in earlier amendments, most powers in the Bill could be exercised with little or no formal scrutiny. These amendments would make the bulk of regulations made under the Bill subject to the affirmative procedure, ensuring that the SIs had to be debated and justified. Of course, I understand that this is no silver bullet and this House never makes a habit of voting down statutory instruments.

Last week, I asked the Minister what planning had been undertaken in relation to the powers in the Bill. Have the Government decided on a sequence yet? Do we know how many statutory instruments we may be dealing with? If the Minister is unable to comment at this time—we have received no correspondence on this matter—is he in a position to update the Committee on the likely number of statutory instruments that the Bill may generate? I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank the noble Lord for moving this amendment. I also recognise his point about these instruments being affirmative. I note that we recognised that in an earlier debate today on another issue. Of course, affirmative statutory instruments allow for those debates to be taken forward.

My colleagues and I have said before that we want an opportunity to scrutinise all regulations under the Bill. The Government will provide all their usual accompanying material under normal parliamentary procedures. I can commit at the current time that any regulations that amend Acts of Parliament will be subject to the affirmative procedure, although there will be some technical and detailed regulations under the Bill that may be subject to a negative procedure. That does not in itself mean that there will be no scrutiny, but I note what the noble Lord has said.

There are obviously details still to be determined around the volume of the SIs that would be coming, but I will see whether there are further details that I can share with the noble Lord and inform him appropriately. For now, I ask him to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw Amendment 65.

Northern Ireland Protocol Bill

Debate between Lord Ponsonby of Shulbrede and Lord Ahmad of Wimbledon

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments brings us to the role of the European Court of Justice, with Clause 13 classifying any provision of the protocol or withdrawal agreement that confers jurisdiction on the ECJ as “excluded provision”. When the Government negotiated and signed the withdrawal agreement, they agreed to a limited role for the ECJ in certain cases. This clause ends ECJ jurisdiction, even when it does not directly relate to excluded provision, and there is a question mark about whether the Government are acting in bad faith on this matter.

Subsections (4) and (5) have been included, according to the Explanatory Notes, to allow Ministers to make arrangements for the sharing of relevant information with the EU. Can the Minister say more about this? To our knowledge, the UK has still not given the EU access to real-time customs data, as required under the withdrawal agreement.

The scope of the power in Clause 13 is very wide. The DPRRC said:

“Parliament has no knowledge of the Government’s plan but is meanwhile expected to rubberstamp all the regulation-making arrangements.”


This point has been made by a number of noble Lords, not least the noble and learned Lord, Lord Judge.

Amendments 21B to 23C, tabled by my noble friend Lord Hain and the noble Baroness, Lady Ritchie, on the potential consequences for the operation of the single electricity market, are very important. I hope the Minister will be able to clarify the legal position. I also hope he will rise to the challenge put to him that the UK Government have every intention of maintaining an all-Ireland electricity market. I look forward to the Minister’s response.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank again all noble Lords who have spoken on this issue. I will approach the question on the single market in electricity, and I am grateful to the noble Lord, Lord Hain, for tabling his amendments in this respect. I will start with Amendment 20, in the name of the noble Lord, Lord Tweed of Purvis.

Northern Ireland Protocol Bill

Debate between Lord Ponsonby of Shulbrede and Lord Ahmad of Wimbledon

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Clause 15 contains what the DPRRC called the “most arresting” powers in the Bill, allowing Ministers to rip up and rewrite an Act of Parliament by granting the power to classify parts of the protocol as excluded provision or to tweak the precise nature of that classification, with virtually no parliamentary oversight.

The Minister will argue that the Government have constrained themselves by listing nine permitted purposes for which changes can be made to the application of the protocol, but that list changes very little. The DPRRC describes it as

“a very broad set of circumstances”.

Unlike SIs made under the EU withdrawal Act 2018, which must be accompanied by a declaration of the good reasons for them, the DPRRC says that there is no obligation for a Minister to include a statement setting out why the regulations are being made.

The DPRRC report does not take issue with Clause 16, although this also confers very broad powers on Ministers: they can make any additional provision that they like in relation to additional excluded provision. Once again, we need the Government to publish indicative regulations: we currently have no idea how the use of these powers would look or how often they would be used. We are told that the tearing up of the protocol is to bring stability and predictability to trade across the Irish Sea, yet these powers theoretically allow Ministers fundamentally to alter trading arrangements at short notice, with no reasoning, consultation or formal scrutiny. As with Clause 14, the provisions appear unworkable, and granting such discretion to Ministers is likely to increase uncertainty and instability.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, I thank all noble Lords for their contributions. I hear what the noble Lord, Lord Hannay, said, and I will take that back to the department. As I have said, where we can, we will certainly seek to update noble Lords on our current engagement, negotiations and discussions with our partners in the EU. From our perspective, the end objective is that the protocol must work for all communities in Northern Ireland, as I have said repeatedly. Clearly, it is not.

I turn specifically and briefly to Amendment 24, in the name of the noble Lord, Lord Purvis of Tweed. I will take this together with Clause 15 as a whole, as he did in introducing this group. This amendment would effectively entirely remove the ability for Clause 15 to operate. From the Government’s perspective, Clause 15 is important to ensure that the Bill is flexible enough to tackle any unintended consequences or future issues that may arise and that threaten the objectives of the Bill, particularly considering the importance of the issues the Bill is intended to address. This means that Ministers can make regulations to adjust how the Bill interacts with the protocol, and to reflect which elements are disapplied.

I fully understand that there is concern about the breadth of the powers under this clause; we have had debates on this, and the noble and learned Lord, Lord Judge, has raised this repeatedly. I reassure noble Lords that the power is limited to a closed list of specified purposes set out in Clause 15(1)—the noble Lord, Lord Ponsonby, alluded to this—for example, to ensure

“the effective flow of trade between Northern Ireland and another part of the United Kingdom”.

We have also applied the stronger standard of necessity to this clause, given its content. This is clearly an area where Ministers should be asked to reach a higher bar and have less discretion, a point we have debated extensively already. Additionally, as has already been discussed—and just to reassure the noble Baroness, Lady Ritchie, on her amendments relating to Article 2—Clause 15(3) provides that this power cannot be used to terminate the “rights of individuals”, the “common travel area” and

“other areas of North-South co-operation”

in the protocol. Of course, these are not the only areas of the protocol left unchanged by the Bill, but they are specifically defined here to provide particular reassurance on these very sensitive matters. I hope noble Lords are therefore reassured that Clause 15 will be used only in the event that it is absolutely necessary to address the Bill’s core objective of preserving political stability in Northern Ireland, an objective that I know all Members of your Lordships’ House share.

I turn briefly to Amendment 32 in the name of the noble Baroness, Lady Chapman of Darlington. We have already talked about the terms “appropriate” and “necessary”, and I put on record that we believe there is an appropriate level of discretion for Ministers in this respect.

I turn to Clause 16, which supports the functioning of the Bill by granting the power to make new arrangements in any cases where it becomes necessary to use the powers contained in Clause 15. This means that new law can be made via regulations, if appropriate to do so, in relation to any element of the protocol or the withdrawal agreement that has been the subject of the powers in Clause 15. This clause can therefore be understood as the equivalent of Clause 15 to the other domain-specific powers provided in other clauses of the Bill.

From the Government’s perspective, it is vital to ensure the functioning of the Bill and to prevent any gaps in the underpinning arrangements. Without it, there is a risk that any new issues arising from protocol provisions would not be properly addressed due to an inability satisfactorily to make replacement arrangements. I therefore recommend that this clause stand part of the Bill.