Northern Ireland Protocol Bill

Lord Lisvane Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, when the purpose and the intended effect of a clause are unclear, it sometimes helps to look at the Explanatory Notes to the Bill. These are produced, of course, by the Government, and are designed to explain. But if we look at the Explanatory Notes to Clause 18, we see that the confusion and uncertainty are even more manifest.

Look at paragraphs 96 to 98 of the Explanatory Notes. Paragraph 96 tells us that:

“Clause 18 clarifies the relationship between powers provided by this Bill and those arising otherwise, including by virtue of the Royal Prerogative.”


That is what Clause 18(2) says. Paragraph 97 deals specifically with Clause 18(1). It says:

“Subsection (1) provides that Ministers can engage in conduct (i.e.”—


and I emphasise that it is “i.e.” and not “e.g.”—

“sub-legislative activity, such as producing guidance) relevant to the Northern Ireland Protocol if they consider it appropriate in connection with one or more of the purposes of this Bill.”

If that is the intended purpose of Clause 18(1), why not say so? Why not limit the scope of Clause 18(1) specifically to say that Ministers can produce guidance? We could then have a debate about whether it is properly drafted, whether it is too broad or whether there should be some controls. I am afraid that what we find in Clause 18(1) bears no relationship whatever to what the Explanatory Notes tell us that Clause 18(1) is designed to achieve. My conclusion from that is that there must be real doubt here; that Ministers know what Clause 18(1) is designed to achieve and are reluctant to be specific because they do not want proper controls on the scope of their powers.

[Lord Lisvane (CB)]

To follow the noble Lord, Lord Pannick, I wonder whether one route might be for the Minister to give us a glimpse behind the veil. What were the instructions given to parliamentary counsel? In other words, what were they asked to achieve by means of Clause 18(2)?

[Baroness Suttie (LD)]

My Lords, I will speak in favour of Amendment 38, tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name.

My noble friend Lord Purvis of Tweed has already spelled out in great detail the potentially huge increase in power that Clause 18 could grant to a Minister of the Crown, and I believe that the noble Lord, Lord Pannick, has further explained the total lack of clarity as regards this clause.

I was reflecting on the many debates we had on this Bill last week and on the general and frankly astonishing lack of clarity from the Government as to why such sweeping powers should ever be deemed necessary—the Rumsfeld “unknown unknowns” clauses, as my noble friend has coined them. Later this week, I believe we will be hearing a Statement from the Secretary of State for Northern Ireland on progress—or, indeed, lack of progress—in bringing back the Northern Ireland Assembly and a functioning Executive, and whether there will be elections imminently in Northern Ireland to overcome this impasse.

The Government and other noble Lords have stated that one of the Bill’s main purposes was to deal with the understandable concerns of the unionist community, particularly the DUP, about the impact of the Northern Ireland protocol. One can hope that the talks taking place in Brussels and at the climate summit in Egypt will lead to genuine negotiations and a potential framework for agreement. It has also been stated that one of the Bill’s purposes was to facilitate the DUP’s return to the Northern Ireland Executive, yet it remains far from clear that passing this legislation in and of itself would achieve this. It is therefore increasingly hard to understand why we are pushing ahead with this very bad Bill, which sets so many dangerous precedents, if it does not, in itself, achieve even one of its so-called “main objectives”—namely, a much-needed return to a functioning Northern Ireland Assembly and Executive.

When the noble Lord, Lord Ahmad, replies to this group of amendments, I would be very grateful if he confirmed that re-establishing the Northern Ireland Executive remains one of the Bill’s primary purposes. If it is, does he not agree that other much more productive approaches, such as genuine negotiations and a change of tone, could be taken that would achieve exactly the same goal, but more effectively?