Private Notice Question
To ask Her Majesty’s Government whether a future trade agreement between the United Kingdom and European Union will be secured by 15 October; and what plans they have to ensure that the provisions of the Northern Ireland Protocol contained in the withdrawal agreement are upheld in the event that no such trade agreement is reached.
My Lords, the eighth round of negotiations will begin in London today. An agreement is still possible, and we will continue to work hard in September to achieve it. We will also continue to work with the EU in the joint committee to resolve outstanding issues with the NI protocol. However, as a responsible Government, we cannot allow the peace process or the UK’s internal market to be inadvertently compromised by unintended consequences of the protocol.
My Lords, let us be clear here. The Government promised that they would deliver a first-rate deal with the EU when the transition period ended on 31 December. Yet on the very day the chief negotiator has taken his seat in the House of Lords, he rates the chances of a deal at 30% to 40%. What has gone wrong? We look forward to hearing from him when he speaks in this House.
Less than a year ago, the Prime Minister heralded the Northern Ireland protocol as a major political victory, which the noble Lord referred to. Now, as the Northern Ireland Executive are preparing for implementation, it has unforeseen consequences. Really? Was nobody paying attention at the time? Was nobody watching?
I have three questions for the noble Lord. Can he confirm that any clauses about Northern Ireland in the upcoming legislation will be fully consistent with the withdrawal agreement and the Good Friday agreement? Also, given the shock departure today of the head of the UK’s legal department, will the Government publish a precis of the legal advice and the opinion of the Attorney-General? Finally, seeking unilaterally to override a negotiated and signed treaty has serious implications for trust in us as a nation. Can the Minister tell the House—I am happy for him to write to me if he cannot—of any previous occasion when the UK Government have overridden a binding treaty that they have ratified?
My Lords, first, I congratulate my noble friend Lord Frost, as I can now call him, on his introduction and his outstanding service in the negotiations.
The noble Baroness asks why we have not yet reached a conclusion. In our judgment, the European Union has not been as constructive as it might have in the way the negotiations are conducted. I say to the noble Baroness and the House that I hope the legislation will be published imminently, and full time will be allowed in the House to debate the specific and important issues the noble Baroness has raised.
I will have to take advice on her point about legal opinions, and I will respond to her on that. As far as Mr Jones is concerned, the Government obviously respect his views and thank him for his service. But we are clear that we are acting fully in accordance with UK law and the UK’s constitutional norms. Without prolonging the answer, there are precedents, with which I will gladly provide the noble Baroness.
My Lords, Jonathan Jones, who was the head of the Government Legal Service, resigned this morning because he thought that the Government’s plans to override the Brexit withdrawal agreement were in breach of the Ministerial Code, which obliges Ministers to obey the law, including international law. How can the EU, or any country with which the UK is currently negotiating, have any trust in this Government to follow through on any agreement reached, when they are, in this case, clearly planning to tear up an agreement made only a few months ago?
My Lords, there is no such intention on the part of the Government. We will continue to work with the European Union in the joint committee to resolve outstanding issues on the protocol. Those of your Lordships who have followed it closely will know we are already committing and spending to undertake some of the requirements of the NI protocol. To de-dramatise this for a moment, let us see if we can get an agreement in the joint committee. I then hope that the safety net that we will be discussing on the Bill will not be necessary.
Does my noble friend recall that, shortly after the British people were so unwise as to vote to leave the European Union, Monsieur Barnier said—I think I have the right terms—that the British people needed educating, which most people translated as, “We need to teach them a lesson”. Does he share my concern that the same arguments of the last four years are now put forward by the same people, who are not reconciled to the fact that we have left the European Union and would believe—and indeed support—anything said by EU negotiators and Michel Barnier, rather than support those, such as the noble Lord, Lord Frost, working hard in our national interest in these very fraught negotiations?
My Lords, my noble friend makes pertinent points. My view is that both sides should seek to make progress. A lot of work has been done, and there have been obstacles, but we consider some of those artificial, so let us hope that they can be swept out of the way. The Prime Minister made clear again that he would like to agree a deal, but the matter cannot drag on indefinitely.
My Lords, what additional steps are the Prime Minister or other Ministers taking or contemplating to persuade individual EU Heads of Government to allow Monsieur Barnier to modify his reportedly fixed positions on a so-called level playing field and fish quotas?
My Lords, our duty is to negotiate with the European Union, and that is the proper course that we are taking. I make it a practice at this Dispatch Box to not comment on the internal affairs of the European Union, but the points the noble and gallant Lord raised are pertinent.
My Lords, given the concerns in the House about any attempt to derogate from an international treaty and the implications for the peace process in Northern Ireland, will the Minister confirm that the Government are aware that any attempt unilaterally to modify the terms of the withdrawal agreement will adversely affect the confidence of EU citizens resident here, and of British citizens resident in EU countries, in the United Kingdom’s commitments under the agreement, if treaty commitments may be set aside? What can the Minister say to reassure both categories under these circumstances, other than to undertake to honour the treaty in full?
My Lords, perhaps I should declare an interest as a resident of another EU country. I do not feel that there is a wider spreading out from this. The British Government are determined to honour their obligations. We are proposing, as noble Lords will see—we will have a long opportunity to discuss this—to take a power to disapply the EU law concept of direct effect in a very specific and limited way. As for the peace agreement, I say to the right reverend Prelate that the peace agreement has an east-west aspect, as well as a north-south aspect.
My Lords, can the Minister confirm that the reason for Sir Jonathan Jones’s resignation was his great concern about the proposed Bill, as reported in newspapers today? I know Sir Jonathan very well, because for many years he was the head person in my department when I was Attorney-General. I know him to be a hugely talented lawyer, very experienced in Whitehall and very loyal to the Government. He would not, therefore, take issue with what the Government have said unless he really was of the view that it was inappropriate. Can the Minister confirm that the Ministerial Code still applies to all Ministers—and that includes obeying and respecting the law? Does he agree that, if this is a negotiating ploy on the part of the Government, it is at best very dangerous or at worst could be disastrous if it also has the consequence—as has been stated by one democratic representative today—of scuppering the US deal?
My Lords, I have not looked in detail at Sir Jonathan Jones’s resignation statement, nor have I read the newspapers today. I share and express the respect that all members of the Government have for him. In our judgment, the Ministerial Code has not been breached. We are clear that we are acting fully in accordance with UK law and the UK’s constitutional norms.
My Lords, I also want to pick up the question of a US trade deal. The Government have trumpeted the prospect of such a deal, but Congress at least will not approve it if the Good Friday agreement is imperilled by this Government’s non-respect of the Irish protocol to the withdrawal agreement. How do the Government expect to get a US trade deal if they imperil the Good Friday agreement?
My Lords, I completely reject the idea that the Government are imperilling the Good Friday agreement. I repeat what I said a minute or two ago: the peace process has an east-west as well as a north-south aspect, which the Government fully respect. The purpose of our approach is to protect peace in Northern Ireland and the Good Friday agreement.
My Lords, as the noble Baroness, Lady Smith, mentioned, parliamentary scrutiny is very important here. Many Members of your Lordships’ House have raised concerns—especially regarding secondary legislation—that the Executive are taking more and more power for themselves. Is this another example of that, and will there be adequate parliamentary scrutiny of any changes?
My Lords, I declare an interest as set out in the register, as chair of the Arab-British Chamber of Commerce.
I have chaired a number of webinars with colleagues and friends in the Arab Middle East about what is going to happen by 15 October, and there is a great deal of concern. With the greatest respect to the Minister, he appears to have come to answer this Question with very little information about why Sir Jonathan Jones has resigned. He says he has not read the letter of resignation. That is going to increase the anxiety. There is a real sense of urgency among our trading colleagues across the Arab Middle East regarding what will happen. Do we now tell them that they must expect to trade under the WTO rules?
My Lords, it was certainly never envisaged. That might be an effect of the default position. This is something which your Lordships will have the opportunity to examine. It cannot be the case that every good passing from Great Britain to Northern Ireland is at risk of being carried on into the European Union.
My Lords, actually, some of us did point out at the time that the default position under Article 5 of the protocol was that all goods moving into Northern Ireland would be deemed at risk of going south. We also pointed out that Article 13 meant EU export documentation for goods going the other way—from Northern Ireland to Great Britain—and that Article 10, on state aids, was capable of a very wide interpretation, with the ECJ having the last word. What was not foreseen, at least by me, was that any UK Government would seek to settle such issues unilaterally, with the domestic law purporting to override an international commitment. Pacta sunt servanda. Tearing up treaties is what rogue states do. I cannot recall us ever doing so. The Minister claims that there are precedents. Can he please name just one?
My Lords, the Finance Act 2013 contained provisions expressly disapplying international tax treaties in relation to the extent that these conflicted with the general anti-abuse rule. I have other examples. I would say to the noble Lord, whose distinguished services to our country I respect, that there were ambiguities in the protocol. For example, the arrangements of the EU refer very clearly to unfettered access. That is why we have a Joint Committee: to work out these ambiguities. Let us hope that it is still possible for it to complete its work.