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House of Lords Hansard
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European Union (Withdrawal Agreement) Bill
14 January 2020
Volume 801

Committee (1st Day) (Continued)

Clause 21: Main power in connection with Ireland/Northern Ireland Protocol

Amendment 12

Moved by

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12: Clause 21, page 25, line 5, leave out “(including modifying this Act)”

Member’s explanatory statement

This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

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I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.

Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,

“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]

Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.

Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.

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My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”

In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]

Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.

This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.

I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”

Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.

As the noble Baroness just said, there is a formidable recommendation from the Delegated Powers and Regulatory Reform Committee, on which I have had the great pleasure to serve but no longer do so—but I have the greatest respect for the work it does on behalf of the House. It needs to be said that the committee’s recommendations are made in completely stark terms. For example, at paragraph 21 the committee states:

“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”

It goes on to say:

“Clause 21 allows regulations under Section 8C to make any provision that could be made by an Act of Parliament, but without limiting that provision (in the way that section 8(7) of the 2018 Act currently does and new section 8B(5) would do) so that it cannot be used to: … impose or increase taxation or fees, … make retrospective provision, … create a relevant criminal offence (i.e. with a penalty exceeding 2 years imprisonment), … establish a public authority, … amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or … amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”

The committee concludes this section by saying:

“The Government have not justified the difference in approach as between Sections 8 and 8B of the 2018 Act (on the one hand) and Section 8C (on the other). The House may wish therefore to seek a justification from the Minister for this difference in approach.”

I acknowledge that last night the Minister did attempt a justification, but I think noble Lords will agree that it was inadequate.

The Constitution Committee of your Lordships’ House said this morning:

“We agree with the DPRRC that the powers in Clause 21 to modify the 2018 Act should be limited to the minimum necessary and that the purpose of the power should be made clear. The Government must justify the powers in new section 8C(1)–(2) and explain why they are not subject to the same limits as those in section 8 and new section 8B of the 2018 Act.”

Some Members of Your Lordships’ House may regard Clause 21 as a trivial departure from usual practice or they may try to pretend that, since it relates directly to Northern Ireland, with all the sensitivity that that implies, it is of no consequence more generally. However, nobody can deny that it would establish a very retrograde precedent. I am reminded of the authoritative warning of the noble Lord, Lord Anderson of Ipswich, referring to this clause yesterday:

“This is Henry VIII on steroids.”—[Official Report, 13/1/20; col. 472.]

Ministers could accept this modest improvement without in any way endangering their legislative timetable.

I and my assistant have been trawling through apposite statements of principle illustrating the proper role of Parliament in our current situation. For the last four years, one journalist and politician has been consistently outspoken on this issue—taking back control. Out of many articles and speeches, I give a simple summary as follows:

“Only this Parliament can make this new relationship the work of the nation, and so Parliament should be at the heart of decision making as we develop our approach. I acknowledge that in the past we have perhaps not always acted in that spirit.—[Official Report, Commons, 19/10/19; col. 572.]

That was Boris Johnson, speaking last year. He acknowledges the true sovereignty of Parliament. This House, as well as the other place, cannot afford to neglect our own role in preserving that reality.

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My Lords, I suppose I should declare an interest as regards Clauses 21 and 22 because I live and work in Wales, so the stability of the devolution settlement is therefore important to me personally, especially as my work is in areas of the devolved competences.

I should point out that, along with a clear majority, I was alarmed at the prospect of a no-deal Brexit and therefore relieved when the Prime Minister and the EU negotiators managed to agree a process for an orderly EU withdrawal. Clearly, the Northern Ireland protocol is critical to that, and I am sure that no one wishes to imperil the withdrawal agreement by wilfully obstructing the implementation of that protocol.

Nevertheless, the Henry VIII powers in respect of doing so are wholly unrestricted—something which other Members have quite understandably expressed disquiet over. The concern is that such powers would enable Ministers of the Crown unilaterally to amend the devolution settlement as laid down in the Government of Wales Act—and the equivalent legislation for Scotland and, indeed, Northern Ireland itself—or to enable Ministers to make such changes without any scrutiny by the legislature.

I understand that Ministers may conclude that it is necessary to adapt devolved competences; for example, to underpin the unfettered access of Northern Ireland agricultural produce to the market in Wales, even if it fails to meet the standards which have been adopted in Wales itself or across Great Britain as a whole. I also understand why they might not want to follow the cumbersome route of primary legislation to achieve this.

But where the National Assembly—or Senedd, as it will be known—agrees with changes to its own competence, there is a perfectly acceptable route, as the noble Baroness, Lady Hayter, has said, via a Section 109 Order in Council to achieve this without primary legislation. I would argue that any attempt to proceed in a matter of this kind without securing the agreement of the devolved Government and legislature in question would be likely to ignite a major constitutional conflict. No one should underestimate the tensions there are at the moment around the devolution settlements.

The aim of the amendment is therefore to promote an exception to this power in respect of the Government of Wales Act and, for the sake of logical consistency, the equivalent legislation in respect of Scotland and Northern Ireland. If the Minister does not concede, or at least provide reassurance, that these powers will not be used to change the devolution settlements without consultation and agreement by the institutions affected, it will inevitably fuel suspicions, as has already been said, that the UK Government want the power to make changes to the devolution settlements even when the National Assembly and Welsh Government are opposed to such changes.

As I said at Second Reading, it is about ensuring consultation, not veto. In many areas the item of negotiation is very likely to straddle devolved and reserved competences. The use of an overriding Henry VIII power—rather than a Henry VIII power in conjunction with a Section 109 Order in Council, or simply the Order in Council—would be completely inappropriate. It would ride roughshod over the settlement we currently have. It would appear to be a potential abuse of power. I am not saying that this Government intend to abuse their power, but we have to be concerned that whatever we put in legislation now could produce unintended consequences in the future.

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My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.

If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.

Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.

Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.

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I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.

This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.

The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.

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My Lords, this has been an interesting discussion, which has focused on a broad range of issues affecting the wider devolution settlement.

Some things need to be set out very clearly at the outset. The first thing is that the purpose of the protocol, which was not mentioned a great deal in the discussion, is to ensure the delivery of clean access within the island of Ireland between Ireland and the UK. This is to ensure the integrity of the customs union of the United Kingdom but also that we have the powers available as we go forward in the calendar year ahead to make necessary amendments in real time to the various elements that will be required as we seek to deliver on the Northern Ireland protocol. The important thing to stress is that we are in a situation in which time is of the essence, but that can never be an excuse.

Secondly, a number of noble Lords have spoken of the repeal of the devolution settlements almost as a Domesday scenario. There was a reference to Henry VIII powers being used, in essence, to eliminate the devolution settlement with Wales or anywhere else. It is important to stress that this clause is in no way designed for, or seeks to achieve, that purpose. Where there are elements of primary legislation which are to be amended, this will be done through the affirmative procedure, which allows significant scrutiny to take place in both this House and the other place. It is important to recognise that we are not just talking about the letter of the law here, but the wider settlements which we have discussed more broadly with regard to Wales and Scotland. The very notion that we can, by some fiat, undo that which has been set in place through the devolution settlements is, frankly, borderline ludicrous. It is not going to happen.

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Is the Minister therefore saying that the Delegated Powers and Regulatory Reform Committee is incorrect? Paragraph 9 of its report notes that Clause 41

“contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament … Such regulations are made pursuant to the negative procedure.”

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To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.

We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.

It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:

“Do you feel lucky, punk?”

and “Make my day.” I am not sure either one is particularly relevant.

In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.

On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.

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I am afraid that that does not answer the points noble Lords have made. It is not so much that the powers are needed for Northern Ireland, but there should be restrictions on them. I am sorry, because the Minister is normally brilliant at the Dispatch Box and very well briefed. However, had he read Amendment 15 he would have seen what we were trying to write in by restricting those powers, such as not undermining the Government of Wales Act. He would have understood that we were not questioning that some of the powers will be needed for Northern Ireland—we will come to that in a different debate—but the way they have been set out in this clause. Unlike Clause 18, which I quoted, Clause 21 does not have the restrictions on those powers that exist in the other clauses in the Bill or, indeed, in the 2018 Act.

Our concern remains. It is good to have a northern voice. Most of us here are Welsh or from the West Country, where we feel this very strongly. The Minister is saying that these powers were not designed to undermine devolution and that the intention is not to use them that way, but that is not good enough. When something is put in an Act of Parliament, it is a power. No matter that it is not intended to be used that way, the power is there. As the noble Baroness, Lady Finlay, said, there is already another way. Although I cannot see that the Government of Wales Act would need to be altered for Northern Ireland, if it does there is a perfectly good way of doing it. Denying the restriction, whether it is new criminal offences or anything like that, which exist for all the other Henry VIII powers, is very hard to substantiate, simply because it is to do with Northern Ireland. Not accepting that the other devolution settlements should be in any way accessible to these powers is unsatisfactory. As other noble Lords have said, even the word “repeal” is like waving a red flag at the way these powers could be used.

Having heard from the noble Lord, Lord Tyler, my noble friend Lord Howarth, the noble Baroness, Lady Finlay, and the noble and learned Lord, Lord Thomas, I hope that the Minister might look again at the wording of these amendments and understand why we have real worries about them. Perhaps he would be willing to meet before Report. Otherwise, it will be necessary to try to circumvent these powers in a way that happens elsewhere, but not in relation to the Northern Ireland protocol. I leave the Minister with that thought and beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13

Moved by

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13: Clause 21, page 25, line 6, leave out “may” and insert “must”

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My Lords, at the request of my noble friend Lady Ritchie of Downpatrick, who has to attend a funeral tomorrow, I wish to move Amendment 13 and speak to Amendments 14, 16, 17 and 20 appearing also in the names of the noble and right reverend Lord, Lord Eames, and the noble Lord, Lord Empey, and with the blessing, I know, of the DUP, Sinn Féin and the Alliance Party.

We all welcome the restoration of devolved Stormont government and wish the Assembly and Executive well in taking Northern Ireland forward to what we all hope will be a better and more stable future. I have always maintained that, where there is deadlock in the political process, as we have seen over the last three years so tragically, it can be resolved only when the British and Irish Governments work together in a focused and positive way. There are former Secretaries of State in this House who I think will not disagree with that. I particularly commend the way in which the current Secretary of State, Julian Smith, approached the outstanding issues, working closely with the Irish Foreign Minister, Simon Coveney, ably supported by the noble Lord, Lord Duncan, and the Minister in the Commons. The Secretary of State has brought energy and commitment to the negotiations that, sadly, his predecessors lacked, and he was doing so even before the political arithmetic changed with the election last month.

It is in the context of the restoration of the institutions in Northern Ireland and, more crucially, their prospects for long-term stability that I urge the Government to accept these amendments. After all, they achieve what the Government themselves profess to support: namely, no impediments to trade across the Irish Sea. The purpose of these amendments is to protect the Northern Ireland economy from the clear and inevitable damage that leaving the European Union in the hard Brexit way seemingly envisaged by the Government will otherwise cause. They are not delaying or wrecking amendments—nor are they the last frantic efforts of deluded remainers or remoaners to thwart the democratic process. They are essential damage-limitation measures, supported by all the political parties in Northern Ireland. Let us pause on that: all the political parties. How often do we see that? And joined by businesses and civic groups, too.

Amendments 13, 14, 16, 17 and 20 hang together as a package. Amendment 13 replaces “may” with “must” in Clause 22, Part 1C, and new Clause 8C in Clause 21 in order to stiffen the drafting of the regulations that will be made under these provisions of the Bill. Otherwise, the problem is that the protocol either places Northern Ireland in a good place or between two bad things, where it will have its largest internal sales market putting barriers up to it and it will not have genuinely unfettered access to the EU market. That will put businesses in Northern Ireland at serious risk of competitive disadvantage on all sides.

Amendment 14 ensures that, in accessing the market within Great Britain, businesses in Northern Ireland must continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market. Also, Northern Ireland businesses will enjoy these rights to free access regardless of whether they trade directly with Great Britain or via an Irish port or airport.

Amendment 16 would ensure that any relevant regulations for new requirements on goods traded to and from Northern Ireland to Great Britain cannot come into force without the consent of the Northern Ireland Assembly—and, furthermore, that there must be no additional charges or administrative costs for the businesses involved in this trade. The reason for Amendment 16 is that, in their own impact analysis, the UK Government note that exit summary declaration forms will be needed for goods moving from Northern Ireland into Great Britain for the purposes of security and safety, listing the type and weight of goods in order to keep track of what kind of imports or exports are crossing economic borders. The Government estimate the costs as ranging from £15 to £56 per declaration. This too will add costs and friction to the movement of goods. Businesses will need support to adjust to these new requirements. They will also need proper training to adapt to them, and of course any additional costs will inevitably be passed on to consumers, unless the Government ensure there are no such additional costs, which is precisely what this amendment does, and what the Bill does not do.

Amendment 20 requires the Government to develop mitigations to protect Northern Ireland businesses and consumers within the UK internal market. By mitigations we mean demonstrable steps to safeguard their position. But we are not being overprescriptive—I urge the Minister to note this point—as to how this is done. We are simply asking for effective mitigating steps to be delivered by the Government in the way they choose. What objection to that could there possibly be?

It was always going to be the case that the United Kingdom, in moving away from regulatory alignment with the European Union, would put Northern Ireland under strain. The provisions of the revised protocol mean that the full force of this strain will not occur between the United Kingdom and Ireland at the Irish land border, but within the United Kingdom, because consequential checks and controls will be placed on the movement of goods between the rest of the UK and Northern Ireland. The implementation of the protocol has the potential to see Northern Ireland, over time, face increasing barriers to trade with, and be at a competitive disadvantage to, both the internal UK market and the European Union market.

The likelihood of such a situation arising has increased with the UK Government’s dropping of commitments to maintaining regulatory alignment with the European Union in those areas where Northern Ireland is to remain aligned. If the deadline for concluding and ratifying a future UK-EU free trade agreement is 11 months from the date of withdrawal, it is likely to be a very low-ambition free trade agreement, with a range of sensitive products excluded—for example, agri-food products, so crucial to Northern Ireland’s economy. This would lead to significant disruption of the internal UK market and likely lead to increased economic divergence between Northern Ireland and the rest of the UK.

The fundamental point of risk for Northern Ireland arising from the withdrawal agreement is that having differentiated arrangements for Northern Ireland remaining aligned to the EU for the movement of goods allows the rest of the United Kingdom to pursue a hard Brexit, with increasing regulatory divergence from the EU—seemingly the Government’s intention—with inevitable consequences for intra-UK movement between Northern Ireland and Great Britain. Hence, again, the necessity for these amendments.

The risk is compounded by the uneasy position Northern Ireland now finds itself in over access for goods moving to and from the Great Britain market. Northern Ireland will be in a place between Britain and the EU and, as such, its businesses and consumers will be dealing with the effects of Brexit in a unique and possibly quite complicated way. There will be checks and controls, the extent and nature of which have yet to be exactly determined. But what we do know is that most businesses in Northern Ireland are small and medium-sized enterprises, SMEs. What additional bureaucracy will be imposed on them? How much will it cost them? We and, more importantly, businesses in Northern Ireland simply do not know.

It is likely that all commercial goods coming from GB into Northern Ireland will be subject to customs declarations and there could be tariffs on those goods which are deemed to be at risk of entering the EU single market across the Irish border from Northern Ireland. We and, more importantly, businesses in Northern Ireland do not know what particular goods will be at risk. There may be a process to pay rebates. How long will it take rebates to be paid? We and, more importantly, businesses in Northern Ireland do not know. While it is right that there should be democratic controls through Stormont built in to any new and developing post-Brexit arrangement, to tell SMEs that, perhaps every four years, all might change or all might not change by a vote of the Assembly, is setting forward business planning into a context in which the churn and turbulence of the normal commercial cycle is a mere trifle. It will create huge uncertainty for business investment and planning. As if all this was not difficult enough, the transition period, we are told, will end on 31 December 2020—no ifs, no buts—even though it is starting many months later than originally envisaged. But we are where we are.

This degree of ambiguity for businesses which operate on very small margins is simply not right, especially for a region of the UK whose economic base is far from robust. These amendments are essential to mitigate the adverse impact on those businesses to the greatest extent possible. Crucially, they have the backing, as I said, of every commercial and business interest in Northern Ireland. When the right honourable Member for East Antrim was speaking in the other place in support of similar amendments last week—in uncharacteristically temperate and measured terms—he was speaking not just for the DUP. Indeed, I understand that he even gave way to an intervention from the SDLP, the honourable Member for Belfast South. Whose memory goes back far enough to remember the last time that happened?

However, the Government have so far rejected out of hand any attempt to amend the Bill. The pleas of business, commerce and consumers in Northern Ireland, which know what the consequences will be and will have to live with them, were summarily dismissed in the other place last week. “You will just have to trust the Prime Minister”, they were told. Noble Lords from the DUP will have their own views on that proposition: a Prime Minister who told the DUP that he would never agree to a border down the Irish Sea and then did.

If the Government are not to repeat the mistakes of the last 10 years in Northern Ireland, they must not only hear but listen, and not just when crises threaten to engulf the political process. Recently on individual issues, to their great credit, they have listened: on payments to the victims of terrorism and on historical institutional abuse, for example. That is commendable, and I pay particular tribute to the Minister, the noble Lord, Lord Duncan, on those two key issues of social justice.

I appeal to Ministers to listen again to the critical questions addressed in these amendments. The Government need to listen and treat Northern Ireland, as well as the rest of the UK, with understanding and respect for its place in a UK of equals. Otherwise, the problem with landslides, in politics as in life, is that people get buried underneath them. If what is buried are legitimate hopes and aspirations, whether unionist or nationalist, then that can and will have severely adverse economic and political consequences.

As things stand, one of the best confidence-building measures for the New Decade, New Approach agreement in Northern Ireland, signed the other day, would be for the Government to show that they have listened to business leaders and political representatives right across Northern Ireland, understood their real and valid concerns and will act on them by accepting these very modest but essential amendments.

There is nothing in any of these amendments which should cause the Government any concern—if, that is, Ministers really mean what they say: that any extra administrative processes associated with trade in goods or services across the Irish Sea will be smooth, barrier-free and cost-free. I understand that there are no technical questions of drafting to concern the Government—except maybe the insertion of “must” for “may”—so I trust that the Minister will indicate he can accept these amendments. Otherwise, our intention is to put them to a vote next week. I beg to move.

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My Lords, I have added my name to those proposing these amendments. There must be times when your Lordships’ House feels, “Northern Ireland comes again with a special pleading for special treatment”; were I to come from elsewhere in the United Kingdom, I would have great sympathy with that view. On this occasion I want simply to put two realities to this debate and appeal to the Minister, who has often, if not always, listened with sympathy to the voices from Northern Ireland.

The first reality is that the business community of Northern Ireland has been suffocated by the uncertainty over the Brexit debate, which has been the result as much of its geographical position as of political factors. That uncertainty is now manifested in the debate we had earlier today on the protocol. We are left wondering as a community what unseen consequences could come from the sort of debates that will take place on future trade agreements once we leave the European Union.

The second reality is what I call the reality of reassurance. That reassurance can come only when we listen on the one hand to the repeated assurances of the Prime Minister that we will leave Europe as a United Kingdom. If that is followed up, I beg to suggest that the reality we face from the uncertainty surrounding the business community in Northern Ireland is that, when we leave as a United Kingdom, there will definitely be problems unique to Northern Ireland. If he can assure those of us who support these amendments that the Government will at least listen and not just give us trite phrases or slogans to live with, and that very definite attention will be given to the particular sensitivities of doing business in Northern Ireland post Brexit, many of our fears will be answered.

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My Lords, I will speak to this group of amendments, so forensically and comprehensively addressed by the noble Lord, Lord Hain. The underlying problem that many of us have with it is the following. I served as a Trade Minister for a number of years, and I was able to set up InterTradeIreland, the body designed to promote trade between north and south, and which still exists. It has not been as successful as I would have liked; nevertheless, there is still huge potential there to grow trade. However, our problem is what we are told, not only by the Prime Minister but by the Government more generally, as against our experience with the reality of doing business across boundaries and between different economic units.

Whether we like it or not, from 2 October of last year, when the Prime Minister produced the first phase of his proposals with the European Union, it was obvious that Northern Ireland would be in a different regulatory environment, and once that was conceded, the customs environment was added to it. While there are reassuring words and undertakings, people like me and the businesses that have been referred to cannot just reconcile the aspiration to have free movement without any inhibitions or difficulties and the practical realities of being engaged between the European Union single market and an economy no longer in the single market. We are therefore in this kind of hybrid, of which there is no current example that I am aware of, and where there is the potential, as time passes, for the gap to grow.

We start off the negotiations early next month in the transition period with exactly the same regulatory environment that we have all become used to—there are no differences. That distinguishes the United Kingdom in its negotiation with the European Union from other examples, whether Canada, Mercosur or whatever. We have exactly the same regulatory environment as the rest of the European Union. However, the Prime Minister and others have said that they see things changing over time. The single market, which was invented by this country, is a noble idea, but to retain the integrity of that single market, the consumer protection requirements and standards must be verified in some way.

To look at the practicalities of it, let us take a 40-foot trailer. A carrier moving from England to Northern Ireland may pass through Scotland and will pick up loads in various locations, as groupage companies do. As has been pointed out, some of those goods would clearly be for consumption in Northern Ireland, which is fine, and some may be for transmission on to the Irish Republic. But what about a box of widgets, some of which will be consumed in Northern Ireland and others that will be put into other manufactures that are subsequently exported? There will be a mixture in any lorryloads that come over—that is how the system works. You pick up from different locations with different routes and, as noble Lords know, ports in Northern Ireland are export ports for many goods from the Irish Republic, and ports in the Irish Republic are used for exports not only from the Republic but by traders from Northern Ireland. I pose the question to the Government: when you have this mixture, how will it be possible, in whichever direction you travel, not to have some accountability mechanism for that? I do not doubt that there is trusted trader status and that there are pre-clearance capabilities, for which systems already exist. In fact, it happens regularly. However, in any system, at some point somebody has to undertake a check, otherwise its integrity is compromised. When we deal with sensitive issues, such as agri-foods, pharmaceuticals and other things, the sensitivities are even more acute.

I therefore draw the Committee’s attention to the fact that, while I would not under any circumstances wish to stand in the way of the Government’s objective of achieving our departure from the European Union by 31 January, I am trying to get my head around how we reconcile what the Prime Minister and others have told us with the realities of commerce and business on the ground. Take trade coming from Northern Ireland to Great Britain: people have said with a sweep of the arm, “This is unfettered access.” I understand the objective and I support that. I believe everybody in the Chamber supports that. As the noble Lord, Lord Hain, rightly said, we very rarely get such consensus—dare I use the word; a bolt of lightning will come down in a minute, I think—on anything. I hope that the Minister will take that back to his colleagues. This is not a partisan issue; it goes way beyond that. It goes beyond parties and politics; it goes into business and the community. Jobs are also at stake, as well as all that paraphernalia.

Take goods coming from Northern Ireland to Great Britain. Those goods are produced under a regime, the regulations of which are determined by Brussels and the European Union. Now, are those goods moving from the European Union, and will they be treated by the European Union as exports from the European Union? Will our small economy be included in the economy of the European Union when it is totalled up, or will it be in some kind of hybrid situation, such as that of some of the Caribbean islands or north African colonies that are linked to the European Union? How will it be accounted for? Are we seriously saying that if we send goods from Country Antrim to South Ayrshire, they are exports? We must answer these questions. We do not have the answers.

The amendments in no way attempt to fight some kind of rearguard action. We have such a mixture of views that we would not be associated with that. That unusual fact should send a message to Her Majesty’s Government that an issue here has not been addressed properly—yet. I accept that we will have opportunities in the coming year in this House and elsewhere to negotiate the best arrangements that we can. The Government will have everybody’s support in doing that, but I ask them to address the practical situation.

I am sure that someone will eventually write a doctorate explaining the difference between being in a customs territory and being subject to customs regulations determined elsewhere. I do not get it. I am trying to think of things on a practical basis for a small company. As the noble Lord, Lord Hain, said, most of our companies are small. They can be one-person bands, for example. More than 90% of our businesses are very small businesses. How will those people deal with this? Bear in mind that, over time, the difference between the regulatory regimes will grow. That is just practical politics.

I suggest, and appeal, to my noble friend the Minister to get this message across: we are not interested in thwarting what the Government are trying to achieve this month. We are interested in sending a message to him and his colleagues—not only on our own behalf or as politicians, but to represent the business community and the community in general—that there is widespread concern. Secondly, we do not understand the practical ramifications—for example, if we face increased costs for our businesses, which it appears this will produce. I had the pleasure of being responsible for inward investment in Northern Ireland for some years. We were able to go along and say, “Look, we’re the gateway to Europe. We’re an English-speaking community”—I did not make the point that we are also an Irish-speaking or an Ulster Scots-speaking community; I made the point that we are an English-speaking community—“and we have unfettered access to half a billion people”.

Now, what does my successor say? He says, “At the moment, for the next year, we’re in the European Union and we have free unfettered access to that. At the end of that period, we’re still in the UK customs territory but our regulation is X and theirs will be Y and, in four years’ time, we might decide that our position will be the same or that our position will be different.” So you are sitting there with your officials, looking at people and saying, “We want you to come and invest.” Come on. If you want to put a millstone around somebody’s neck in trying to sell their country as a perfect investment location, that is tough stuff.

I simply say to the Government: please look at these amendments not as some kind of stunt or attempt to in any way thwart or obstruct what they are trying to do. They are designed to try to prevent potential further obstacles and barriers to the free and unfettered access of trade. If you effectively create a trade border between Belfast and Cairnryan, you have caused huge political damage to the Province, because it would be the first time since the union that we would be economically separated from our largest market in the rest of the United Kingdom.

This is big stuff. I hope and pray that the Committee will see it in those terms and that, over the weekend, the Minister will be able to persuade his colleagues of the significance of there being unanimity among the political parties at home, backed up by the business community and others. The trade unions are involved; everybody is on the same page. I ask him to take those matters into consideration when he replies.

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My Lords, before the election, the whole Brexit debate was coloured by the Prime Minister’s call for certainty, his demand for the certainty that the business community throughout the United Kingdom was looking for. That demand for certainty concerning Brexit resonated in the general election, and we know the result: the Government received their majority, and a handsome majority it is.

I will address the amendments so ably and professionally outlined by the noble Lord, Lord Hain. Consistency in message is not only desirable but, I believe, imperative. Inconsistency in message undermines confidence and trust within society. Of course, there is a lot of mistrust out there between the community and politicians. Many suggest that history will tell you that Governments promise to do one thing out of office and then do the very opposite when they get into office. But during the debates about Brexit, specifically concerning Northern Ireland as regards what happens from the day we leave Europe, the Prime Minister has said one thing and the Brexit Secretary a completely different thing.

I am led to believe that Mr Barnier said in the European Parliament this afternoon that there will be checks within the United Kingdom. How does that equate with what our Prime Minister has promised the people and the business community of Northern Ireland, not only during the election but right up to the present? It is hard to reconcile what is being said and what is being put into legislation. Business leaders and political leaders have declared unitedly that the present situation, as outlined before this House, is not acceptable.

We find that the amendment that simply asks to change the word “may” to “must” seems to cause consternation within the Government. Of course, certainty is something that the Prime Minister said the United Kingdom was going to get with him. Certainty was going to be the very cornerstone of his Administration. Well, “may” is not certain; “may” can mean that it may happen or, of course, it may not. But “must” declares that it must happen. It is interesting: the Prime Minister has told us that there is a departure date, but it is not a “may”. As far as he is concerned, it must happen on that date. He has told the whole of Europe that there is no possibility of an extension. We can surely not be blamed, in the light of statements that have been made, for being deeply concerned.

Bear in mind also the statement made in the recently published New Decade, New Approach document:

“To address the issues raised by the parties, we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.”

I suggest that what we are doing in these amendments is simply putting in legislation what was promised, having taken that promise to be genuine.

Take, for example, the promise made in the Conservative manifesto:

“Guaranteeing the full economic benefits of Brexit: Northern Ireland will enjoy the full economic benefits of Brexit including new free trade agreements with the rest of the world. We will ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK and that in the implementation of our Brexit deal, we maintain and strengthen the integrity and smooth operation of our internal market.”

How can we set that statement, which is the guiding principle of the Government, along with the declaration in the European Parliament today that there will be checks in the United Kingdom, and therefore checks between Northern Ireland and the rest of the United Kingdom?

The internal market is vital for the economic well-being of Northern Ireland. We trade more with the rest of the UK than with the entirety of the rest of the world combined. I believe that the amendment before the House tonight not only has cross-community support but goes further: in Northern Ireland, it has all-party support. Cross-party support is regarded as not only rare but unprecedented, but here we have something further. Surely the Government of this United Kingdom must therefore listen to the voice of the people and ensure that no impediments, and no financial burdens and costs, are put in the way of businesses in Northern Ireland.

Trade is one of the key planks in the United Kingdom which binds us together as a nation. Without delaying the House further, I ask the Minister to take back what has been said by Members who have already spoken—and by those who will speak, I am sure—and listen, and put into legislation that which is required to assist us.

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My Lords, very briefly, I want to add my support to the thrust of these amendments. I express sympathy with my noble friend the Minister. I suspect that, having listened to the arguments around the House, he would very much welcome the opportunity to try to keep to the manifesto commitments, which were so ably outlined by the noble Lord, and recognise the will of the people of Northern Ireland, who, as we have heard from across the House, support the thrust of these amendments, so brilliantly moved by the noble Lord, Lord Hain.

This does not delay the legislation but is about damage limitation. I implore my noble friend to take this back to the department and champion this House’s role of ensuring that the other place properly considers the implications of what is being proposed in this legislation. From looking at the debates in the other place, I do not believe that the sentiments expressed across this House and the wisdom that we have heard this evening were fully reflected there.

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My Lords, the EU committee of which I am a member has spent a lot of time on Northern Ireland issues. Although I do not visit the Province regularly, I used to do business there and greatly enjoyed it; it is a fantastic part of the United Kingdom.

What really worries me goes back to what was said by the noble Lord, Lord McCrea: this denial by the Prime Minister that there is any problem here, when clearly there is. Yes, we have it in the protocol that the Province is to be part of the UK customs territory—but in reality it is part of the single market and the European customs union. It is de jure part of the UK and de facto part of the EU in terms of its economy.

The recent report by the EU committee stated:

“Notwithstanding the statement in Article 4 of the protocol that Northern Ireland is part of the customs territory of the UK, the practical implication of the protocol’s provisions on customs will be the introduction of a regulatory border for goods travelling from Great Britain to Northern Ireland. The introduction of such a border within the UK will have financial and political consequences”—

which is probably an understatement.

I was in the EU committee when the current Secretary of State for Brexit, Stephen Barclay, said, on the advice of his senior civil servants, that there would indeed be that border down the Irish Sea, and that there would be documentation; it would not be frictionless. So I find it very difficult to understand why we have this very trite statement, as always, by the Prime Minister, when that is not the case.

To emphasise what the noble Lord, Lord McCrea, said, I will quote what has been said today by the EU’s chief Brexit negotiator, Michel Barnier. He stated that the protocol on Northern Ireland outlined in the withdrawal agreement means that checks on goods moving from Great Britain to Northern Ireland would have to be in place. He said:

“The implementation of this agreement foresees checks and controls entering the island of Ireland. I look forward to constructive co-operation with the British authorities to ensure that all provisions are respected and made operational.”

We have not heard a great deal from the European Union on this issue. I suspect that it is very wary about entering the politics of Northern Ireland. But that silence has now broken, and it is very firm. So it would show respect to the Province if the Government could be honest about what is foreseen.

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My Lords, I very much support the amendments moved by the noble Lord, Lord Hain, and I am very grateful for the detailed way in which he explained them. It could not be clearer; he covered pretty much every aspect. This has been reinforced by everybody else who has spoken. It is difficult to avoid the reality.

Let me first address the political dilemma. The Government have had an election, they have a majority of 80 and they can do what they wish in the House of Commons; we know that. The Minister has effectively got instructions that all amendments must be resisted. However, the Prime Minister’s personal reputation and integrity rest on this issue. He has explicitly said that there will be no checks—and in a sense, these amendments are trying to put into law the Prime Minister’s promise of what the protocol would mean. We all know the difficulty is that any analysis of the protocol does not square with the promise—unless the Prime Minister has got some way of explaining that which none of us has yet come across.

A useful analysis of the protocol has been produced by the Institute for Government, which makes it clear that the protocol means that while Northern Ireland will remain part of the customs territory of the UK, customs checks and controls will apply for goods moving from Great Britain to Northern Ireland because that ensures that customs checks or controls are not required between Northern Ireland and the Republic. That is the essence of the protocol in a nutshell.

The consequences of that, therefore, are that not only will there be checks but that exports into Northern Ireland from the rest of the UK will be subject both to customs checks and, potentially, tariffs. There is an argument that these tariffs could be reimbursable, but that immediately introduces a bureaucracy of having to regulate them, and apply, and when and how long that takes. So let us be honest; we are facing a dilemma.

As has been said, the Northern Ireland economy is one of small businesses and is vulnerable and fragile. For many of those businesses, the practicalities of dealing with this could be life-threatening and could effectively destroy their viability. Indeed, one begins to wonder how the pattern of trade might change, inasmuch as businesses in Northern Ireland may find that trading with the mainland of the UK is just too difficult; and, indeed, businesses on the mainland of the UK may decide that Northern Ireland is too much trouble. Somebody trying to order something online through Amazon may find that it does not supply Northern Ireland, or will only supply it at a premium, or will charge a tariff which may or may not be reimbursable. These are the kinds of complexities that we are facing and envisaging, and everybody who has spoken recognises that to be the case—and I think it is reasonable.

I do not envy the Minister’s position, but I would love him to have a conversation with the Prime Minister and say, “Prime Minister, you have categorically stated that there will be no checks or tariffs. It would be helpful if everybody else in the Government could have it explained to them how this is going to be achieved, because I have not come across anyone who yet knows how it can be done”. So the amendments are well-intentioned and constructive. They are about saying, “We have a promise and this is how it should be delivered.”

Given the Benches I am speaking from, I should make it clear that I accept that we are leaving the European Union at the end of January and that the Bill needs to be passed in good time and in good order. I certainly do not regard this as anything other than a genuine recognition of a crucial issue that needs to be addressed on behalf of the people of Northern Ireland. I do not have to repeat, but I will, that it has cross-party, business, and community support—literally, unanimity—across the entire Province that says, “Please help us through this dilemma.” I hope that the Government will recognise that they have an obligation to do so.

Perhaps I might raise one other slightly unrelated issue in relation to these clauses. The commitment to non-diminution of rights within the agreement is enshrined in Northern Ireland legislation—in other words, it applies to it—but there has been some concern, particularly in the debates we have already had about Henry VIII clauses and other clauses, that this does not apply to any other legislation passed by the United Kingdom Government. Does the Minister accept that if the UK Government can amend aspects of legislation in Northern Ireland—or, for that matter, elsewhere, but Northern Ireland in this context—the non-diminution of rights would be meaningless if UK law could compromise that and only Northern Ireland law is protected? I hope I have made myself clear and I would be interested to hear the Minister’s comments on that.

In conclusion, the Minister can be in no doubt about the feeling across the House. I have said, both publicly and privately to the Minister, that his engagement on these and all other issues is warmly admired and respected—there is no question about that. His commitment and sincerity in wanting to get the right results is not in doubt or in question, but he is defending a difficulty here on behalf of the Government.

He has between now and next week. It is probably a forlorn hope, but I think he should have a conversation with the usual channels and the Government to say that this issue is really causing a great deal of fractious difficulty and the Government need to show in very real terms that they are going to address it. If they could in some way or other accept these amendments or bring forward a government amendment that followed that through, a lot of mistrust might be evaporated and the situation might be regarded as one in which the Government have demonstrated a genuine determination to get to the right place, which is unfettered access.

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My Lords, this has been an interesting debate, and I do not think its implications could at any point be overestimated. I am grateful to my noble friend Lord Hain, who moved the amendment on behalf of the noble Baroness, Lady Ritchie of Downpatrick. Noble Lords will be aware that she has a family funeral tomorrow and has to be back in Northern Ireland this evening. I think she would have been very pleased to hear the detailed, comprehensive explanation given by my noble friend Lord Hain of the implications of the Government’s legislation and the amendments that have been suggested tonight.

It is worth saying that we are having this debate against a backdrop of a changing political situation in Northern Ireland, one that all of us wholeheartedly welcome, which is the return of the Assembly and the Executive. I congratulate the Minister, his colleague the Secretary of State and the Northern Ireland parties because compromise was essential to get to this point. It could not have been achieved had not all parties come together, as we have seen in the past, to compromise to ensure that the Assembly is up and running again and the Executive has been established.

It is in that spirit of compromise that I appeal to the Minister tonight, because it is only by having the kind of compromise that has returned the Assembly and the Executive that we can make progress on this issue. We know—and people in Northern Ireland have been told—that the message from this Bill is no compromise, no amendments, nothing must change. That is a wholly unacceptable way to approach any legislation. The noble and right reverend Lord, Lord Eames, said that people will say this is special pleading for Northern Ireland. I do not think it is. It is pleading not to make life more difficult than it is going to be already. If the Northern Ireland political parties can compromise in the way we have heard about from the noble Lord, Lord McCrea, I am sure the Government can take a step in that direction as well. I am slightly concerned that there has been no Statement from the Government about the progress made in Northern Ireland. I hope one will be forthcoming shortly.

If anybody in government is concerned that this is a series of amendments about not accepting the result of the referendum—my noble friend Lord Hain and the noble Lord, Lord Bruce, made this point—if it were not for accepting the result of the referendum, these amendments would not be required. It is because we are leaving the EU that they are so essential.

I do not want to go through the purpose and the details already outlined by other noble Lords; I want just to re-emphasise three points. First, as the noble Lord, Lord McCrea, said, these amendments have not just cross-party support, but all-party and none support from people in Northern Ireland. I have not come across anything from anybody in Northern Ireland that says that the purpose behind these amendments is something they reject. It is universal. The Government have to listen to that. The people on the ground understand the implications of Brexit. Whether they support Brexit or not, they still support these amendments.

Secondly—this point has been made—this reflects the promises and commitments that the Government have made to the people of Northern Ireland. We all know that the Prime Minister gets a bit flamboyant during election campaigns, but let us bring it back to what he actually said. Basically, he said, “There will be no checks or tariffs, and if anyone has a problem with that, come and see me—phone me about it”. If that is the case, will the Government publish the phone numbers of the Prime Minister and his deputy, Dominic Cummings, so that people can phone them directly? Nobody is clear about the situation and there is a great deal of mistrust when flamboyant statements are made with no facts behind them.

Thirdly, Northern Ireland needs a level playing field if it is to protect businesses and consumers, as all of us in this House will understand. A trade expert, Professor Alan Winters, has undertaken an analysis that concludes that, taking into account both GB and international goods, a total of 75% of Northern Ireland’s imports could be subject to EU tariffs on arrival. That is a phenomenal amount. It will be damaging to the economy, as we have heard—I will say more on that in a moment—and it will also be quite complicated. Perhaps the Minister can comment on how this will work, but my understanding is that goods entering Northern Ireland from Great Britain and deemed at risk of being moved to the Republic will be subject to tariffs, but those could be rebated if it could be shown that the goods were consumed in Northern Ireland. How on earth is that going to work? Are we going to check what is consumed or part consumed? It is a recipe for disaster for the economy.

The integrity of Northern Ireland as part of the UK internal market is integral to the success of the Northern Ireland economy. To put additional costs on the economy, whether on the consumer or on businesses, is completely unacceptable. Looking at the political and financial implications of what is being proposed, the Government need to give absolute clarity that there will be unfettered access on trade. If they are unable to do that, they have to accept the amendments.

I say to the Minister that I do not think that the Government’s approach is good enough. I know that he will have a folder of briefing notes. I have been there—I have been a Minister. The notes on the amendment say “resist”, but there are times when that is the wrong course of action. It is not good enough to say that we need a clean Bill. We have heard that in this House before. These amendments can help the Government. They assist them in what they are seeking to do and they assist Northern Ireland. There is no good reason to oppose them, other than trying to take a macho approach to the legislation, but that just will not work. I am sure that the Minister personally is sympathetic, but we need more than warm words. We need to know that the Government are prepared to accept the amendments or come forward with their own suite of amendments.

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My Lords, I should like to speak before the Minister responds. I want to make a few brief remarks, not least on what has already been said. In Northern Ireland we are continually lectured and told, “If you could only speak with one voice, how different things would be.” However, we speak as one voice tonight. We speak not only politically, but for the business community, and I include all those who have spoken on this matter.

I know that the Minister is a listening man, but I want him to go a step further and implement the proposed changes. The noble Lord, Lord Hain, the noble Baroness, Lady Smith, the noble Lords, Lord Bruce and Lord Empey, my noble friend Lord McCrea and others have said very clearly what Northern Ireland expects. We must be allowed to function as a country and as a trading partner with the rest of the United Kingdom.

There is no doubt—and those who do not agree with my politics at all have clearly outlined—that what we are being told by the Prime Minister is one thing, but actions always speak louder than words. We need the Prime Minister, the Government and the Minister, the noble Lord, Lord Duncan, to take on board very clearly that there are serious issues at stake here.

It is ironic that one part of the United Kingdom will have a border with the rest of the United Kingdom. How can that ever be right? Even common sense will tell us that that is not functional; it will just not work.

It has already been stated that Northern Ireland’s economy is built on a multiplicity of small businesses—those which employ and engage fewer than 10 people. That is what our economy is built on; that is the backbone of our economy. We do not disparage the large companies that bring massive employment to our shores, but it has to be said clearly, and I do not exaggerate when I say it this evening, that those small businesses are watching every move, because their future is at stake—not only their future, but that of many homes.

It is no secret that wages in Northern Ireland are lower than those in other regions of the United Kingdom. Many families struggle. Many are in the poverty trap. Many live on the margins, as I call it. Are they not deserving to be treated equally? Is there not a strong case for saying that we need to look at this again? As my colleague and noble friend Lord McCrea has said, there is an ocean of difference in the meaning of the word “may” as compared to the word “must”, which the noble Lord, Lord Hain, has asked to be put in. You have an option if you may; you do not have that option if you must.

I concur with those who have said that this is not in any way a wrecking attempt. We know where we are in the whole Brexit debate. We know where we were in relation to Brexit. This is not a last-gasp, desperate attempt to do something over the Government. This can be implemented very easily and respectfully. I associate those remarks with the amendment in my name and the names of my three colleagues. We have absolutely no difficulty in supporting the amendments that have been tabled, and I trust that there will be no difficulty in supporting our amendment. It is there for the right reasons; there is nothing sinister about it. We are absolutely sincere. I plead with this House and with the Government to take it sincerely, because there is so much at stake.

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My Lords, this has been an expectedly wide-ranging debate because, when it comes to Brexit, the Northern Ireland protocol is where the rubber meets the road. I take on board the comments made this evening in that light. I also note the cross-party support for the amendments before us and I acknowledge that that is a unique occurrence.

I will try to give some context to where I think we need to take the debate. First, there is the question of unfettered access. It is straightforward for me to say that, as part of my party’s election commitment, we spoke of “unfettered access” in our manifesto. Further, my right honourable friend the Prime Minister has given a personal commitment on the notion of unfettered access; he is already on record as doing that. Further again, it is important to recognise that the world has changed since this matter was discussed in the other place. Over the weekend something—I will not say “miraculous”, and I do not mean it unkindly—extraordinary happened. We have restored the Executive and the Assembly, so the debate has gone on since then. It is important to note that New Decade, New Approach sets out explicitly that legislation to secure unfettered access will be in force by 1 January next year. Each of these are indeed new elements regarding this matter. It is important to stress that, between now and 1 January, there needs to be a serious and detailed granular dialogue with all of the business community of Northern Ireland as this matter evolves. For the first time we will have the voice of Northern Ireland in its right place—in the Assembly and the Executive. This Government commit to full engagement with the relevant Ministers and the wider Assembly in these matters.

It will be important to recognise that this is an evolving state of play because the other factor that I cannot fully comment on is that what will happen on 1 February, or soon thereafter, is a serious negotiation between the UK and the EU over the trade relationship that will ultimately determine the nature of the border between Ireland and Northern Ireland and, ultimately, between the UK and the rest of the EU. It is vital that we have a Northern Ireland Executive, and now an Assembly—thank goodness it is there—to be part of that dialogue. We need to recognise that there will be elements that are vital to take on board from the business community, and I give the commitment now that that will be a serious ongoing dialogue with all those who have something to say. It is vital that we do that.

I want to touch on some of the remarks made by the noble and right reverend Lord, Lord Eames. Once again, he reminds us that what we say here is not just for our own consumption but is consumed more widely. He gave us the expression “the reality of reassurance”. The difficulty that we have as a Government is trying to reassure Northern Ireland when it appears that the amendments before us have certain flaws in them that would not allow us to support them. The reality of reassurance is therefore a test for us: to be able to ensure that those people in Northern Ireland, the business community and the Members of the Assembly and the Executive, hear that we are seeking to undermine these amendments not because we do not like them in the context in which they have been put together, nor indeed because they do not aim for the same direction that we wish to get to, which ultimately is unfettered access. It is because the amendments themselves have elements that would cause the Government concern in the delivery both of the protocol and of the elements required for the future negotiations between the UK and the EU. It is for that reason that I cannot support the amendments. I want to go through that in greater detail to bring that element to life.

There is a wider discussion of the question of “may” versus “must”, “must” being a much more certain word, but the question is more fundamental: what “must” be done by that point? That is the point where we reach a certain challenge in terms of legal challenge, litigation and judiciable expectation. One of the reasons we have put in “may” is to allow for the voices now empowered in Northern Ireland to be part of that discussion in the calendar year ahead. Rather than setting these elements in stone from here, we are facilitating a proper discussion with those newly installed individuals so that those voices can be heard. The reason we are saying “may” is that there may be elements that we do not need to take forward at all in that context, and there may be some that we do need to take forward. The thing to remember is that our ambition remains the same around all sides of this House: to secure unfettered access.

A number of noble Lords have asked detailed questions about the future trading relationship. Blessedly, I am not in a position to give an answer to that because much will depend on the negotiations not yet begun. It is important for us to recognise that we have to be clear about what we can say, which is regarding the customs territory that we are ourselves a part of: the United Kingdom of Great Britain and Northern Ireland. That is where we have the authority to be clear about what we are seeking to do. For example, the noble Lord, Lord Empey, asked the elusive and mythical “widget” question about the notion of mixed elements and how they end up. Part of that is for us to determine—namely, the part within the area that we recognise as the customs territory of the UK in its widest sense. The notion of what happens thereafter will ultimately be for that joint committee between the UK and the EU to take these matters forward. That is something I cannot comment on because I am not yet clear how that will move forward in that direction.

I am aware that, as a number of noble Lords have said, this is a matter in which we need to recognise the commonality of the position of all the parties, but certain of those elements create an issue for us. One would be that one of the amendments would in essence create a veto for the Executive, which would then undermine our ability to deliver the protocol and, potentially, our ability to secure the agreement between the UK and the EU, which must rest in international law if it is set out as it is now.

Further, if we set very clear definitions, as some of these amendments seek to do, the danger we face at that point is that some of those definitions may need to be addressed in the ongoing dialogue. When we start looking at that in detail, we may begin to recognise that these are areas in which the important voice will be that of Northern Ireland, not our voice alone. On that basis, in light of the agreement we reached at the weekend, it is important for us to ensure that there is an opportunity for those voices to come together. To give that reassurance—

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I thank the Minister, who is obviously trying to give some reassurance in his comments. He has said that it is the terms of the amendments—their wording—that cause some difficulties. However, I think he is conceding, and understands, the points and concerns raised, and why there is so little trust and a need for that reassurance in Northern Ireland. I apologise if he is going to come to this in a moment, but does it follow from what he is saying that he is therefore prepared to bring forward his own amendments that would give the certainty and reassurance required but deal with his concerns about the wording of these amendments?

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The important thing here is twofold. First, we agree on the destination—on where we are trying to go. Secondly, what we just said is that the amendments as drafted, from our position, undermine what we set out in the initial clause. We have said that the initial clause now delivers what we believe is right for Northern Ireland, both in terms of the wider dialogue and the ongoing evolution regarding the joint committee. That is why I would not propose replacing them with our own government amendments, but rather recognise the vitality of the original clauses.

I thank the noble Lord, Lord Hain, because he has put in place a very clear recitation of where he is coming from and, as he said very clearly, I anticipate that this matter will be pressed to a vote next week.

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I want to pick up what was said about the United Kingdom’s customs rules being entirely under the jurisdiction of the United Kingdom—I paraphrase what I think the noble Lord said. However, the agreement is summarised as saying:

“The Joint Committee will establish further conditions under which goods coming into Northern Ireland from Great Britain would have to pay the EU tariff.”

This suggests to me that it is not in fact our exclusive responsibility, but will be jointly determined between the UK and the EU.

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In response to that, of course it will be our exclusive view in that negotiation to determine our own position as we respond to that. Again, it rests with us to try to move that in the direction in which we wish it to go.

Again, I am very grateful to the noble Lord, Lord Hain, for being so candid; I welcome that candour, as I always have. In winding up, I say that we need to be able to send the message to Northern Ireland that, through this process, there will be a deep dialogue with each of the affected parties and we will not place any prescriptive elements that will impact on their ability to determine the future that rests before them in terms of how their businesses will work. They need to have very frank discussions with the Government and ensure that, through each stage in that negotiation, there is transparency so that nobody is left behind or surprised, and the reality remains transparent for all to appreciate. I do not believe that it will be straightforward. It is important to emphasise that the protocol itself sets out very clear decisions, but there are still decisions which must be taken by the joint committee of the UK and the EU and which will have to be worked through as we go forward. There is no point in my trying to pretend that that will not be a challenging position.

The important thing to stress is that we are guided by certain principles that rest on the question of unfettered access. I was struck by the word “unfettered”; it is almost a Victorian term. Where did the notion of “unfettered” come from? What on earth is a fetter? It is a shackle, a thing that is linked around your ankles to stop you escaping. We are looking for a situation in which trade can continue in the customs area that the UK sits within, but which also recognises a democratic element in Northern Ireland, to ensure that it is content with the way this matter progresses in the Province of Ulster, and that businesses are content, too. With the newfound Assembly and Executive, this situation will ensure that Northern Ireland has a voice to register this content or discontent and that there is at no point a democratic deficit in Northern Ireland over what the protocol seeks to deliver or, ultimately, what Northern Ireland wants for itself. That will be important as a very strong check on where we go next.

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I apologise for interrupting the Minister. The Joint Committee has the capacity to widen the scope of its activities and what matters may be included. That disturbs a number of us, because what we see today could change. I do not think that any of us particularly want to get involved in votes, if that is avoidable. In consulting his colleagues over the next few days, will the Minister see whether some expression could be included which would effectively reassure people? A lot of the angst that we all feel would then dissipate. The last thing we want is to have any confrontations between the Houses, but this is heavy-duty stuff. The ability of the Joint Committee to expand its areas of operation and what is included, and not included, is a very big step over which we would have no veto or control. That is driving a lot of the uncertainty which we all feel here tonight.

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As always, the noble Lord brings an interesting perspective to this. I appreciate the fear that the Joint Committee may extend beyond its rails and somehow move into different areas. Within that Joint Committee is the United Kingdom itself, and the purpose there is to hold to account the United Kingdom as it seeks to engage directly with the wider EU. I note underlying that, however, the more important point: the question of reassurance. I hope that the words I can use will give some reassurance today. Equally, I think we will come back to this matter next week when the House will demand of me further reassurance. It is important that I am able to put clearly before this House, and as it echoes beyond this House into Northern Ireland, these reassurances: it has not been overlooked; the newly established Executive will have a strong voice in what goes on, going forward; and the business community can expect to be significantly engaged with each element of the question of unfettered access, to make sure that this is in no way an attempt by the Government to hoodwink either the people or the businesses of Northern Ireland.

If I may conclude, the important point is that I believe we are in common agreement that unfettered access is required. We have the assurance of the Prime Minister and we ultimately have—

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Since the Minister said that he was concluding, can I ask him this? He said that he wants to give reassurance. The noble Lord, Lord Empey, raised the point that we would rather not have disagreement between the two Houses. We would rather get the issue resolved, especially since I understand that in the other place they will have either no time for debate or so little time that it will move to a vote forthwith. Whether this House passes an amendment or not, we do not really have faith that this will be properly considered in the other place. It would be good to fully understand what the Minister is saying. Can he commit tonight to write to us with the details and place a copy in the Library, so that we can fully consider these matters before we come back? I urge him to think that the House is seeking reassurance from him because this matter has to be resolved. The consequences for the people of Northern Ireland if it is not resolved adequately are really very serious. Can he write by close of play on Thursday, so that we can fully debate it next week?

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Yes, I am content to put in a letter the elements I have set out today, with the appropriate detail and clarity which I may have lacked in my explanation this evening, so that the Committee can see exactly what I seek to put on the record. I am occasionally guilty of being expansive—I know that my Chief Whip looks daggers at me occasionally—but I am happy to put that down in a letter in appropriate time, so that the Committee can consider it and make sure that there is no dubiety in what I seek to put forward. I am happy to give that commitment and I will ensure that it is there in good time.

Again, I bring myself back to the important point: I believe that we seek the same outcome, which is to secure Northern Ireland’s place within the family of nations that is the United Kingdom, and to ensure that there are no impediments to the trade within the Province of Northern Ireland as it seeks to trade within its important relationships with the rest of the UK. On that point, I am sorry that I am not able to give more positive support, but I will do all I can in the next few days to set out in writing the Government’s position.

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For simple clarity, can the Minister confirm whether he agrees with Monsieur Barnier in his analysis?

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Having been a Member of the European Parliament, I know that one of the challenges is that Commission officials can sometimes be too expansive in the way that they express themselves, for purposes that are not always clear. I am afraid that I do not know exactly why Monsieur Barnier said what he did but he may well fit into that category. I am also conscious that I did not answer the question of the noble Lord, Lord Bruce. If he will forgive me, I will write to him, and on that point, I conclude my remarks.

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My Lords, I congratulate the Minister on a beautiful response to the question put by the noble Lord, Lord Teverson. I must say that the skill with which he did it was admirable. I am grateful to all noble Lords who have contributed to the debate. The noble Lord, Lord Empey, made a truly excellent speech, the key message of which was that this is not a partisan issue. This point was reinforced by the noble Lord, Lord McCrea—he has not often praised me, especially when I was the Secretary of State for Northern Ireland, even though his leader did from time to time—so when the Minister consults with the Secretary of State and No. 10, can he make that point? We are not trying to re-fight a battle that dates from before the election; we are trying to resolve a problem that uniquely affects Northern Ireland. The point was reinforced by the noble Baroness, Lady Altmann, and the noble Lords, Lord Teverson and Lord Bruce, who put it very succinctly when he said that all we are asking is to put into law what the Prime Minister has promised. That is what it is.

My noble friend Lady Smith urged the Government to compromise, like the parties in Northern Ireland have compromised. Perhaps we can urge No. 10 to compromise. Your Lordships’ House has been put in a difficult predicament in this situation; it is like a sword of Damocles hanging over us. Unlike with other Bills, where we can make a logical and reasonable case, as we have done on Northern Ireland in recent times—I acknowledge that the Minister has been good enough to respond creatively, with the Government behind him—and there is then a bit of give and take, this does not even seem to be in the arena. It is as if we might as well not have this debate because the Government are not going to consider it anyway. I therefore urge the Minister to transmit in crystal clear terms what has been said right across the House in this debate. It is actually a question of trust, as a number of noble Lords said. I have tried to go into the detail in a reasonably forensic way, but it does not seem that what has been said in public by the Prime Minister—I am not taking a party-political pop at him because that is not what we are about this evening—actually reconciles with the facts on the ground.

I come to the Minister’s admirable summing up. To be perfectly frank, what he is really saying is, “Trust us because we are going to talk to the Assembly. It is going to be in business and that is a good thing. The Members can have their say and it will all work out on the day.” Well, there are certain brick walls here, and hard places and collisions between the two, so I am not convinced by that. I am not convinced that a process of sweet dialogue between the Government and the Assembly will necessarily solve these problems. The purpose of the amendment is to solve them, so that there will not be any costs on businesses and no impediments to trade between Northern Ireland and its brothers and sisters in the rest of the UK. That is what it is about. Therefore, I think that there is bound to be a sense of distrust if the Government are not willing to accept the amendment. As my noble friend Lady Smith said, if the Minister comes back and says that the Government would like to rejig the amendment to achieve what we want to achieve by using the expert help of his officials in the Box, of course we will look at that, because we want the same objective. Otherwise, we will be put into the position of having to consider a Division—which we do not want to do.

Can I just ask specifically: will there be direct Northern Ireland representation on the Joint Committee, to actually deal with this issue? Will there be direct input for the Executive and, sitting behind it, the Assembly, reflecting businesses? Will that be possible? Will the Minister clarify that point?

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I do not know the answer right now, but when I come back I will know the answer and I will set that out next week.

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I am grateful. As always, the Minister is very helpful.

We have a dilemma here. At the moment, we are intending to retable the amendments and we will have to decide what we want to do, and what the feeling of the House is. We all saw that the feeling in the Committee tonight, including on the Conservative Benches, was pretty unanimous that these amendments and the principles behind them are ones that the House wants to see.

Unless the Minister wants to add anything before I sit down—no? He is being diplomatic and possibly prudent in not doing so. But on that basis I will withdraw Amendment 13 in the hope that we will get something practical that is actually in statute on Monday or Tuesday before we consider this matter again.

Amendment 13 withdrawn.

Amendments 14 to 16 not moved.

Clause 21 agreed.

Clause 22: Powers corresponding to section 21 involving devolved authorities

Amendment 17 not moved.

House resumed.

House adjourned at 9.37 pm.