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Lords Chamber

Volume 825: debated on Monday 7 November 2022

House of Lords

Monday 7 November 2022

Prayers—read by the Lord Bishop of Durham.

Introduction: Lord Swire

The right honourable Hugo George William Swire, KCMG, having been created Baron Swire, of Down Saint Mary in the County of Devon, was introduced and took the oath, supported by Lord Strathclyde and Lord Marland, and signed an undertaking to abide by the Code of Conduct.

Introduction: Lord Sahota

Kuldip Singh Sahota, having been created Baron Sahota, of Telford in the County of Shropshire, was introduced and made the solemn affirmation, supported by Lord Grocott and Lord Kennedy of Southwark, and signed an undertaking to abide by the Code of Conduct.

Oaths and Affirmations

Baroness Valentine took the oath.

Death of a Member: Lord Boyce

Announcement

My Lords, I regret to inform the House of the death of the noble and gallant Lord, Lord Boyce, on 6 November. On behalf of the House, I extend our condolences to the noble and gallant Lord’s family and friends.

Family: Protective Effect

Question

Asked by

To ask His Majesty’s Government what assessment they have made of the report by Children’s Commissioner for England Family and its protective effect: Part 1 of the Independent Family Review, published on 1 September; and in particular, what assessment they have made of the definition of the ‘protective effect’ and its implications for future policy.

My Lords, the Children’s Commissioner’s review is centred on the protective effect of families. We agree. A strong and safe family home helps children to meet their full potential in life. That is why we have announced over £1 billion for programmes to improve family services, including family hubs and the Supporting Families programme. The Children’s Commissioner’s review will help to inform ongoing work so we can be sure to support all types of families.

I thank the Minister for her reply. The Children’s Commissioner’s excellent report reveals a strong correlation between close familial relationships formed through shared experiences and both the immediate well-being of children and their long-term outcomes. Families are the primary way that families support one another but sometimes, outside support is required and the report reveals that often, families struggle to access this and that it is unequally available across the country. How will His Majesty’s Government ensure equal access to and availability of family support services across the whole country?

The right reverend Prelate will have heard me say already the scale of the investment we are making in family services and the importance we place on them. In particular, the Government are committed to opening 75 family hubs in areas which need that support most. But I agree with the right reverend Prelate and stress the striking point in the report regarding who families in need turn to: namely, their families and friends, far, far before any statutory service.

My Lords, we have a new Cabinet since my own Question on this review, so I ask again whether a Cabinet Minister has been appointed to co-ordinate every department’s policies to strengthen families? Also, acknowledging the 75 hubs already mentioned and my registered interests, will the Government bring funding forward for the remaining 75 local authorities to develop family hub networks, given the huge pressures facing families and the test-and-learn approach taken to hubs in the first 75 councils?

My noble friend knows that working to strengthen families is a key priority across several government departments and although there is not currently a designated Minister, we will be actively considering this. We share my noble friend’s aspiration to see family hubs across the country and it is crucial that we deliver really well in the selected local authorities, so we will be building on the evidence and learning from this investment to improve services across the country.

Following on from the right reverend Prelate’s Question, the commissioner highlighted that nearly all the children her team helps have significant mental health issues and struggle to access timely and consistent support from CAMHS, so will the Government seriously tackle better access to mental health services as a priority to prevent these problems escalating?

A significant part of the investment we are making in family hubs and the Start for Life programme is specifically related to mental health. Some £100 million of the almost £302 million is for parent-infant mental health support, starting at the earliest possible opportunity.

My Lords, I know the Minister understands that the intervention and support of kinship carers is essential for many of the most vulnerable children and their families. There were some significant indications of the support that kinship carers need in the Josh MacAlister review earlier this year. Can the Government confirm that they will bring in measures to better support kinship carers, so that families really can care for the most vulnerable?

More than 150,000 children live in kinship care, so the noble Baroness raises an incredibly important point. The Government recognise the need to support kinship carers more, and we have made early progress. We have invested £2 million to develop 100 kinship peer support groups for kinship carers; this summer, we set up the first dedicated policy team in the department focused on kinship care; and obviously, we will be responding to Josh MacAlister’s recommendations on that point.

Will the Government be looking at the full costs of knocking £50 billion out of the social economy when we move into this period of austerity? Removing £50 billion could well cause hundreds of billions of pounds-worth of damage, especially to our families.

The noble Lord raises a much broader point. Bringing it back to the review, the Government are very excited about and look forward to the second stage of the Children’s Commissioner’s review on the protective effect that families can offer.

My Lords, Dame Rachel de Souza’s report makes the very valuable point that family policy should not be restricted to any one department or policy area. What are the Government doing to ensure different departments and teams are incentivised to break down silos between them—including local government—so that we can spread awareness of the support available to families and make it far easier for families themselves to navigate?

Government departments already work very collaboratively in this area—my own department works closely with both the Department for Work and Pensions and the Department of Health and Social Care. The real way that we want to deliver for families is by listening to the recommendations from the Children’s Commissioner and making sure that our policy is led by that vision of a family test and its protective effect.

My Lords, does my noble friend the Minister acknowledge that the state cannot do all of this itself? It needs to work not only across government departments but with civil society organisations, particularly neighbourhood civil society. Can she enlighten us on some of the work that her department is doing with local civil society?

My noble friend makes a very important point. Dame Rachel points out in her report that 11% of families in need turn to council services, but almost the same number—10%—turn to the exactly sorts of community services that my noble friend refers to. I know that the majority of the work to support them is done through DCMS, but my department is very much aware of their work and grateful to them for it.

My Lords, another of the findings from Dame Rachel de Souza’s report was that the most common worries for families were financial, due to the increase in the cost of living and particularly the cost of childcare. If we ever want to achieve sustainable growth in this country, we must prioritise a complete overhaul of the childcare system to make it affordable, high-quality and easier for people to navigate. What can the Government do to help?

The noble Baroness will be aware that the Government are committed to improving parents’ access to affordable and flexible childcare. We will set out these plans in more detail in due course.

My Lords, I am a patron of the National Association of Child Contact Centres. Will my noble friend give a big shout out for child contact centres, which play a phenomenal role, relying primarily on volunteers to run them? Cafcass used to provide the service, and the NACCC has not received any money since September, which is obviously putting it in dire straits. Could my noble friend use her good offices to intervene on its behalf?

I will certainly take the point that my noble friend has raised back to the department. I am delighted to express my support for the incredibly important, difficult and sensitive work that child contact centres carry out.

To take the Minister back to the answer she gave on the subject of mental health services, particularly for young people, she will be aware that the real difficulty in providing those services is that there is an insufficiently large workforce. There are simply not enough professionally qualified people to deliver the kinds of services that young people very badly need. In what way are the various funds that the Minister has referred to going to help with that problem?

The noble Baroness makes a fair point, and I am happy to write to her setting out in more detail the Government’s strategy on expanding the workforce. She will appreciate that this falls more within the Department of Health workforce strategy, but I am happy to expand on that. Also, there are a number of very sophisticated and helpful digital applications that can help support young people in addressing the mental health challenges they face.

Greenhouse Gas Emissions: Developed Countries

Question

Asked by

To ask His Majesty’s Government, further to the recent flooding in Pakistan, what steps they are taking as president of COP26 (1) to acknowledge, and (2) to address, the effects of greenhouse gas emissions by developed countries.

First, I express my heartfelt sadness at the horrifying events resulting from the flooding in Pakistan. The UK has committed £26.5 million in humanitarian funding to help support the people of Pakistan as they rebuild from this terrible event. At COP 26, parties recognised that loss and damage are already impacting lives and livelihoods and agreed to scale up support to address this issue. An agenda has now been agreed for COP 27 this week and next, with a specific item on loss and damage. New news today is that the UK Government will commit to triple funding for climate adaptation, up from £500 million in 2019 to £1.5 billion in 2025, which will of course help countries such as Pakistan and Somalia.

I thank the Minister for her Answer. The World Meteorological Organization reports that greenhouse gas emissions are at historic highs, with a worrying, unexplained spike in methane—a greenhouse gas which is 20 times more potent than carbon dioxide. Countries such as Pakistan, those of east Africa and low-lying island states are responsible for a minuscule amount of current emissions and practically none of the historical emissions, yet they are in the front line of the extreme weather events that are a direct consequence of those emissions. First, now that the Prime Minister is going to COP 27, will the Minister urge him personally to intervene and make sure that the loss and damage agenda sees some progress there? Secondly, does she regret that we have missed our own target for the Green Climate Fund this year by $288 million?

The good news is that the Prime Minister is at COP 27 today. He has been speaking and will make announcements, one of which I have just mentioned. While I cannot go into the detail of what kind of negotiations will go on on loss and damage, we have announced funding of £5 million for the Santiago network as a demonstration of our commitment to this issue. The points the noble Baroness makes about the particular circumstances of Pakistan are interesting ones which I will take away.

The Pakistan situation is clearly appalling. However, would my noble friend agree that at COP 27, rather than concentrating solely on reaffirming targets, which, frankly, may never be met, or loss and damage grants, which may never be decided, let alone paid, and while emissions worldwide continue to rise very rapidly, there is a much stronger case for focusing on innovative new world schemes for extracting carbon out of the atmosphere and absorbing it directly? Will she reassure us that the UK Government will look at these new schemes and take the lead where they can in a full and constructive way?

I thank my noble friend for his constructive suggestion. I believe in the power of technology. The point he makes about carbon capture and storage is absolutely on the money. We have seen leaps forward which have helped us with tackling climate change on everything from electric vehicles to wind turbines, solar power, LED lighting, hydrogen and new nuclear. Carbon capture and storage are in the same category. Areas like these are where businesses can come together with Governments to innovate, drive things forward and then get them copied in lots of different countries around the world. Climate change is an international phenomenon; sadly, carbon and greenhouse gas emissions have no borders.

My Lords, last week we had a briefing from the President of the Maldives. He pointed out that, of the 100% of GDP, they spend 30% on adaptation due to the fact that the islands are being trashed by hurricanes and sea-level rises, and they are spending a further 25% on debt relief—the debt that they incurred in building infrastructure, roads and hospitals, which are now being washed away by the climate crisis. Do the Government think that there is any value in trying to work towards debt relief for nations such as this, given that the international community cannot yet come up with the £100 billion that we agreed last year in Glasgow for situations just like this?

We are open to innovative solutions. This is another one that has come forward from the Maldives, which I have only just heard about. It is obviously right that hurricanes and monsoons and things make it difficult for countries such as the Maldives and other small islands to deal with their debts; in any financing, we would need to make sure that the result helped with climate change alleviation, but I am very happy to learn more.

My Lords, the Question points the finger of blame solely at developed countries. Does the Minister agree that it is not just developed countries, but also countries such as China and India, whose leaders have failed to attend the conference at Sharm el-Sheikh? Does the fact of their non-attendance suggest a lack of commitment and engagement on their part?

The attendance of the UK delegation—which includes the Prime Minister, the Foreign Secretary, the Environment Secretary, my noble friend Lord Goldsmith from our House, Graham Stuart MP, and, indeed, a former Prime Minister, Boris Johnson—shows the seriousness of this matter. To be fair, we have these big COPs, as we had in 2015 and as we were honoured to chair last year, and not all world leaders go to every COP every year. Of course, if action on climate change is going to work—for exactly the reasons that I have already articulated, in terms of there being no borders for greenhouse gas emissions—it is absolutely essential that China, India and other big emitters step up to the plate and deliver on what they have promised and, indeed, even more.

My Lords, the Minister mentioned Boris Johnson. What has happened to Britain’s global leadership since Glasgow? Boris Johnson said today that he is there in a purely supportive role, but he also said that Britain should not pay reparations for climate change. This was in complete contradiction to the Prime Minister’s announcement today that we should enter into discussions about this question. Can the Minister tell us what the Prime Minister needs to do to make sure that his words are credible?

I do not like the direction of that question. However, we have encouraged discussion on loss and damage. Obviously, the Labour Party has come out with a big initiative on reparations—which is not funded—and it is very important that we join in the discussion of loss and damage to try to find a joined-up way forward, with support from around the world. The whole problem about climate change, as I have said in the House so often, is that it is an international challenge as well as a domestic challenge.

My Lords, following on from the question on loss and damage, the Minister said that it was really important that there is discussion. Have we not utterly arrived at the time when we need action, given that loss and damage was kicked into the long grass, taken out of the Glasgow climate pact and put into the Glasgow dialogue instead? Denmark has promised loss and damage money; Scotland has promised loss and damage money; and the Belgian region of Wallonia has promised loss and damage money. If the Government want to be world-leading, when are we going from discussion to actual action and a promise of money? It is not the same thing as adaptation finance.

In my experience, you can only get action, especially in an international context, if you have constructive discussion. In terms of our contribution, the UK spent £2.4 billion on our international climate finance between 2016 and 2020 on adaptation and investment in areas that needed to address loss and damage. The Scottish Government fund is £2 million.

My Lords, there is no point in offering the least-developed countries support for loss and damage if our Government are removing funding from other areas of that community. For all the figures that the Minister has stated today from the Dispatch Box, how much is new money and how much of it is simply reallocated from the arbitrary cap of 0.5%?

We made very generous commitments to funding on climate change last year. We are sticking to those; the Prime Minister made it clear on the steps of Downing Street that he regarded protecting the environment as very important. Sometimes you change the priority which you give to different aspects of the climate change matter, but that is the way to move forward and do things better, and the announcements that have been made today are directed exactly at that. I am delighted at the progress that is being made today, but the question is whether the discussions will deliver what we want over the next two weeks. We look forward to reporting on that when COP 27 ends.

Education Technology: Oak National Academy

Question

Asked by

To ask His Majesty’s Government what assessment they have made of the impact of funding for Oak National Academy on the education technology market in England.

My Lords, as an integral part of the process to set up Oak National Academy as an arm’s-length body, the department produced a business case which passed internal government clearances. It included an assessment of the potential market impact and was published by the Government on 1 November of this year. Monitoring market impact will be a priority throughout Oak National Academy’s lifetime and will be factored into its ongoing evaluation and two-year review.

My Lords, I refer to my entry in the register of Members’ interests, in particular my work with ScaleUp Capital and Perlego. Fifteen years ago, the BBC decided to provide free education material to schools but, quite rightly, the BBC’s regulator, the BBC Trust, closed it down as an unacceptable market intervention. Given that the creation of the Oak National Academy is opposed by publishers, multi-academy trusts, the educational technology sector and even the teaching unions, can my noble friend tell me why the Government have decided to nationalise the education technology and publishing sector? Can she tell me why they have decided to spend £45 million on a quango employing 80 people that nobody wants? In short, can she explain why the Government want to be the BBC?

It is tempting to try to answer the last part of my noble friend’s question but I will resist. I would like to set the record straight. My noble friend suggests that nobody supports Oak National Academy and that MATs were resistant to it. That is not an accurate representation of the facts. There are two big reasons why we think this is important. First, we know that our teachers spend a lot of time preparing curriculum, and we want to reduce their workload and the burden that they face to allow them to focus on their pupils. Secondly, we are clear that the quality of the curriculum can still be further improved, and Oak is one simple way of doing that.

My Lords, I refer your Lordships to my interests in the register, particularly as a member of the board at Century Tech. The Government are splurging £43 million on Oak, which is used by only just over 5% of England’s teachers but which allows Ministers, in the words of Jon Coles, the chief executive of one of the largest MATs, to promote their own preferred curriculum model. I now regularly hear from private equity investors that they are put off investing in education resources in this country because of the distortion caused by the Government clumsily entering the market at scale. Please can the noble Baroness tell the House what competitor analysis the department has undergone and why it thinks this significant investment will aid growth and choice for teachers?

I have to say it sticks in my throat to have private equity investors who are responsible for considerable distortions in the children’s home market lecturing the Government on distortions in the edtech market. More importantly, the Government are not distorting the curriculum. The Government are striving—I know that the noble Lord knows that this is true—to have the best curriculum for children. We know that teachers will make the best judgment on what curriculum their students need. That is why, apart from the curriculum from Oak’s own partners, which will be on the platform, it will also showcase more than 80 other curriculum models for providers so that teachers can make those comparisons.

My Lords, however good the materials from the Oak Academy may be, I was very pleased to hear what the Minister said about other materials. I would like her to reassure the House that there is no intention, and never will be, that Oak Academy materials will become mandatory in schools, or even be perceived as required on the basis of support for those materials from Ofsted, to the exclusion of other curriculum materials and pedagogical style.

I am delighted to be able to reassure the noble Baroness that Oak will never be mandated; it is an optional resource for teachers.

My Lords, I remind the House of my registered interests. Will the Government assure us that if we are using this to support teachers, it will be an example of the style of help that can be used in areas such as better education around special educational needs? If so, when will we get an idea of how this will fit in—possibly through the reaction to the review, for which we are all waiting?

The procurement of materials for key stages 1 to 4 is largely discrete from the review. Oak will be providing resources only for key stages 1 to 4, and only digital resources. That procurement has just gone out, and we will wait to see what is delivered as a result.

My Lords, I declare an interest as the honorary president of BESA, the British Educational Suppliers Association, whose members have grave concerns about the Oak proposals, and who are mainly highly motivated and innovative small and medium-sized enterprises. Has my noble friend had time to read today's Times Educational Supplement, which points out that four out of 10 of all lessons on Oak started by pupils are not finished, with the worst take-up in disadvantaged areas? Can she comment on that? Could not the funding allocated to Oak be better spent working with tools on solutions that they know work best for their pupils?

I will look at the numbers to which my noble friend refers. I wonder whether she is referring to lessons delivered by Oak during the pandemic, when they were online and children were working from home. Obviously, the resources that the department is funding Oak to develop in future will be for teachers to deliver in the classroom—although it also provides a back-up and support in the event, God forbid, of another pandemic.

My Lords, following on from the question of the noble Baroness and her mention of the Times Educational Supplement article, the analysis also shows no clear trend between Oak usage and a school’s Ofsted rating in schools overall. Therefore, why is this investment being made if it is not improving Ofsted ratings and school performance?

These are very early days; this is strategic investment for the next many years. I challenge the House to think of the questions it would be posing to the department if we were not investing in digital resources for children.

My Lords, first, I welcome and associate myself with the Minister’s comments about private children’s homes.

It has been reported that Oak National Academy is considering allowing private companies to sell its lessons on for profit. I remember that, when it was first set up, it was envisaged that no individual would be able to profit from the activities of the new body. However, now facing legal challenge, the Department for Education has add to row back on geoblocking Oak outside the UK and make users aware that alternatives are available. Can the Minister update the House on this ongoing legal challenge and her department’s progress towards establishing the promised “thriving commercial market” for Oak National Academy?

In relation to geoblocking, Oak will not be internationalising its content; materials will be geoblocked. The noble Baroness is right that the department has received a challenge from BESA and the Publishers Association. We have responded to their recent concerns about the future operations of the ALB and we are looking at all the different models of licensing going forward. I am happy to update the noble Baroness in due course when those are decided.

Is my noble friend aware of the results of a recent report that found that, notwithstanding the concerns raised by noble Lords, the Oak Academy had a positive impact on the workload of teachers using its resources, saving nearly half of them three hours a week, the equivalent of three weeks during a school year? Will my noble friend and her fellow Ministers continue to champion a range of ways to improve educational access and resources for schools, because this immeasurably helps reduce the burden of our hardworking teachers?

I agree entirely with my noble friend. She is absolutely right that almost half of teachers who used Oak reduced their workload by three hours a week. She is also right, and I reiterate, that we trust teachers and that the department supports them to have a choice of materials that they use.

Trading Relations: USA, EU and China

Question

Asked by

To ask His Majesty’s Government which of the world’s three largest economies—the United States of America, the European Union, and China—they will prioritise in seeking to improve trading relations.

My Lords, we are engaging with all three trading partners to remove trade barriers. In the year ending June 2022, the US was our largest single trading partner, accounting for 16% of total UK trade, worth £234.7 billion. In this period, the EU remained our largest trading partner overall. We exported goods and services worth £298.1 billion, which is 42.9% of our total trade. China was our fourth largest single trading partner, with £92.9 billion of bilateral trade, which is 6.3% of total UK trade.

My Lords, I thank the Minister for that Answer. Given that trade with the EU makes up around half our imports and exports, it is vital that FTAs with larger non-EU markets, such as the US, China and India, are advantageous to the UK economy. In recent departmental questions in the other place, Ministers seemed unable to put an estimated net value to any future trade deals that the Government are pursuing, including CPTPP. Is this because the estimates do not exist or because the Government are unwilling to share them? Will the Minister therefore provide an estimate of net values to the UK of trade agreements currently being negotiated, either now or in writing if he does not have the figures at his fingertips?

I certainly will. I will read Hansard tomorrow, in terms of what I am about to say. We have agreed trade deals with 71 countries, plus the EU—partners that accounted for £814 billion of UK bilateral trade in 2021. As the noble Lord will know, we have signed FTAs with Australia and New Zealand and a digital economy agreement with Singapore. We have in progress India—a long way to go—Greenland, Canada, Mexico, the Gulf Cooperation Council and Israel.

My Lords, what does the noble Viscount say about having a trade deficit with the People’s Republic of China of some £40 billion, when China is upgraded by the Government themselves as being a threat to the security interests of the United Kingdom, and about spending some £10 billion—the size of our entire overseas aid and development budget —on items associated with Covid, not least 1 billion lateral flow tests, bought from the People’s Republic of China? Is it not time that we increased our own manufacturing capacity to ensure that such items could be made in the United Kingdom by British workers? Surely we must see that the lack of resilience and too much dependency at a time like this, given what has happened with Ukraine and Russia, is not something that this country should follow.

I always listen carefully to the noble Lord. He makes some good points. I start by saying that 61,000 jobs in this country are reliant on Chinese companies. However, human rights are a major issue; I hope that chimes with the remarks made on many occasions in this Chamber in providing evidence of the extent of China’s efforts to silence and repress the Uighurs and other minorities. It is important that we create a balance between continuing trade with China and the fact that we are not looking at forming an FTA with China at present.

My Lords, we were promised that there would be no friction in our trade with Europe. There is enormous friction. We were also promised by now a full FTA with America that would mop up any slack in our trading relations with Europe. That has not happened. As the noble Lord, Lord Alton, said, we now have the largest trade deficit in our nation’s history with one country—China—making up £40.5 billion. Is it not now in our strategic interest to reduce the barriers between us and our nearest neighbours—democratic countries—and to make sure that our economy is no longer wholly dependent on imports of goods from China? Why are the Conservative Government making the UK dependent on goods from China?

I do not believe that we are doing that. On the noble Lord’s points, I say that our free trade agreement negotiations with the US—it is, as we know, a very important market—are paused at the moment for reasons he will know. On the EU, we know that progress is being made. Obviously, some extremely difficult and sensitive negotiations are ongoing, but we are firmly of the belief that we will be able to resolve these.

My Lords, with all the talk about deficits and the mercantilist mood in the House, will my noble friend the Minister take this opportunity to remind the House that imports are a prize, not a concession, and bring prices down—especially for people on low incomes? As Adam Smith pointed out as long ago as 1776, there is no point in amassing great surpluses except in so far as they pay for imports. Would it not be a good thing if we cut some of our own tariffs unliterally to stimulate this process further and grow our economy?

Well, it is imports versus exports. My noble friend makes a good point: the Government’s vision is to create a UK that trades its way to prosperity. We will achieve this by championing free and fair trade multilaterally, plurilaterally and bilaterally through engagement at the WTO, our free trade agreements and our bilateral market access work. As I said, this allows us also to export using our great skills in services, digital, science, technology and advanced manufacturing.

My Lords, the Minister says that an agreement with India is some way away, just 10 days after the target date for completing the negotiations. Can he explain why that target date was not met?

I understand that the target date tied in with Diwali rather neatly, but I am sure that the noble Lord, with all his experience, will tell me that it is right to have a date that people can work towards. India is a huge prize for this country. It is a dynamic, fast-growing trade partner and offers a terrific opportunity to deepen our already strong relationship, which was worth £29.6 billion in the four quarters to the end of quarter 2 in 2022. However, there is a lot of work to be done on this deal. It is right to have a deadline but we certainly need to work hard on the deal.

Can the Minister give any details of work that the Government have undertaken, or ensured that others undertake, to ensure that no products coming into this country from China contain cotton grown in Xinjiang? During our debates earlier in the year, two Ministers stood at that Dispatch Box and agreed to check products containing cotton, such as mattresses and nurses’ uniforms, to see whether the cotton was grown in Xinjiang. You can do that from the product. What have the Government done about that, because they have never reported any results?

The noble Lord makes a good point. The Government are committed to tackling Uighur forced labour in our supply chains and are taking robust action. Over the past year, we have introduced new guidance on the risks of doing business in Xinjiang, introduced enhanced export controls and announced the introduction of financial penalties under the Modern Slavery Act. These followed the Government’s announcement in September 2020 of an ambitious package of changes to the Modern Slavery Act.

My Lords, will easing border formalities be in the sights of the Government? They serve as a major barrier to trade, particularly in relation to the European Union. While the sentiment behind the Question is clearly understood, does the Minister equally recognise that emerging markets present great opportunities for British companies and government? What strategy is there to persevere with those opportunities?

I mentioned earlier a number of countries that we are actively in discussion with. However, we also have 32 hard-working trade envoys covering even more countries. Now that we are outside the EU, our aim is to reach out wherever we can. We cannot do it all at the same time but, wherever and whenever we can, we aim to agree deals with as many countries as we can that are in our best interests.

My Lords, will the Minister not accept that it is misleading the House, and his headquarters is misleading the country in its leaflets, to say that the Government have signed 71 new trades when the only two new deals have been with Australia and New Zealand? In the other 69, “the EU” has been Snopaked out and replaced with “the UK”.

No, it is right that we say that we have agreed trade deals with 71 countries plus the EU. That is a fact, that is what I meant to say and that is what I will stick by.

Online Safety Bill

Private Notice Question

Asked by

To ask His Majesty’s Government, in light of the Prevention of Future Deaths Report published at the conclusion of the Molly Russell inquest, what plans they have to bring forward the Online Safety Bill in sufficient time to ensure its passage during this parliamentary Session.

My Lords, in begging leave to ask the Question of which I have given private notice, I declare my interests, particularly as founder and chair of 5Rights Foundation.

My Lords, the arrangement of parliamentary business is, as the noble Baroness will appreciate, a matter for business managers through the usual channels. However, the Bill remains a priority. The Secretary of State committed on 20 October to bringing it back to Parliament shortly. We will continue to work with noble Lords, Members in another place and others on the passage of this important legislation.

I thank the Minister for that reply and am happy to see him back in his place. However, after four years of waiting, I am afraid his Answer was not quite good enough.

Coroner Walker’s landmark judgment that Molly Russell died after suffering negative effects of online content, and his Prevention of Future Deaths Report, deserve to be met with action. That action should be finally bringing forward the Online Safety Bill. Molly Russell died five years ago, the same five years in which we have been working on the Online Safety Bill, in the absence of which children suffer an aggressive bombardment of material that valorises self-harm, body dysmorphia, violent porn and, of course, suicide— real harms to real children. Does the Minister agree that it is time to stop this suffering and commit to bringing the Bill to this House before the end of this month, which is the date by which we have been told we need it to ensure correct scrutiny and its passage in this Session?

My Lords, this important legislation has indeed been a long time coming. I was a special adviser in the Home Office when it was first proposed and was in Downing Street when it was first put in the Conservative manifesto in 2017. Like the noble Baroness, I am very keen to see it in your Lordships’ House so that it can be properly scrutinised, so that we can deliver the protections that we all want to see for children and vulnerable people. The noble Baroness is tireless in her defence of these people. She served excellently on the Joint Committee, which has already looked at the Bill. Like her, I am very keen to get it before your Lordships’ House so that we can continue.

My Lords, I register an interest as an adviser to Common Sense Media. I am delighted to see my noble friend the Minister in his place, although I am sad to see that his predecessor has lost his place. Anyway, he is in and he is out.

I regard the Online Safety Bill as the end of the beginning, not the beginning of the end. Mindful that the excellent chair of Ofcom is in the Chamber, I say this: is it not time to get on, expedite the Bill and allow Ofcom, finally, to start to regulate these platforms and social media sites? We have seen Elon Musk taking over Twitter—we need some action now. The Bill is effectively being scrutinised in the other place, and it is ready to come here. Let us get on with it.

My noble friend is right to point to the noble Lord, Lord Grade of Yarmouth, as one of many voices in your Lordships’ House who will help us in the important scrutiny of this Bill. We are very keen for that to take place. Of course, the other place has to finish its scrutiny before this happens. Once it has done that, we can debate it here.

My Lords, business managers will be listening. I hope they will make sure that we are given sufficient time in this House to give proper scrutiny to a highly complex Bill.

If part of the compromises that may have been made in the department are to remove aspects of the Bill, particularly around “legal but harmful”, could the Minister also consider—and have conversations across government—about finding time in a subsequent legislative Session for us to finish the job if the Bill that he brings to this House does not do a proper job?

Regarding future legislative Sessions, I will restrict myself to the debate on the current one. The noble Lord is right: the business managers will have heard how anxious your Lordships’ House is to see the Bill and begin its scrutiny. The decision will be communicated in the usual way.

My Lords, can the Minister assure the House that he, the Minister here and the Minister in the other place, will take advice from all the NGOs and other expert groups that have been working on this crucial issue for so long?

I absolutely can. Ministers have had meetings with such groups and officials have continued to have those meetings, even with the change of Ministers in recent weeks. These have informed the scrutiny and improvement of the Bill to date.

My Lords, when I sat on the Puttnam commission 20 years ago, there was some excuse for not taking action for the real harms being caused on the internet. There is no such excuse now, as has been indicated. This House and the other place have been working on this for five years. The regulators are very well tooled up and ready to move. It is inexcusable, and there will be no excuse for leaving things undone due to backroom deals at the last minute. I do not doubt the Minister’s integrity on this but there must be no deals by No. 10 to weaken the Bill at this point; there is too much at stake. I do not think the Government will be forgiven if they renege on past promises to deliver a Bill worthy of the challenges that we are facing.

The noble Lord is quite right. Members of your Lordships’ House and another place will be vigilant. The Bill is being laid before Parliament so that noble Lords and Members in another place can see what is being proposed and inform the debate on it.

My Lords, does my noble friend agree that the tragic inquest on Molly Russell illustrated that the greatest crime of the 21st century has been the progressive destruction of childhood innocence? Will he therefore talk to business managers to ensure that a carry-over into the next Session happens if it is necessary? As the noble Lord, Lord Knight, said, we must get the Bill on to the statute book after thorough scrutiny in your Lordships’ House.

The inquest into the heartbreaking death of Molly Russell highlights the importance of holding technology companies to account to keep their users, particularly children, safe online. That is why we are bringing forward the Online Safety Bill, why the strongest protections in the Bill are for children and why I look forward to debating it in your Lordships’ House.

My Lords, I welcome the Minister back to the Front Bench. His former boss, Theresa May, launched the online harms agenda, which we on these Benches supported. Yet, three Prime Ministers later, we are still waiting for this crucial legislation to reach your Lordships’ House. Other noble Lords have noted that the Bill must be completed in this Session, as it has already been carried over. If repeated delays mean that the Bill’s passage conflicts with plans for winding up this Session, will the Government extend the Session to get the protections on to the statute book or simply drop the Bill?

I thank the noble Baroness for her words of welcome. She will appreciate that her final point is one for business managers rather than for me but I reiterate, having been there at the genesis of the discussions that led to the Bill, that I am very keen to see it in your Lordships’ House and to give it that thorough scrutiny. It has already been well improved because of the work of the Joint Committee of both Houses, but it needs to come to your Lordships’ House so that we can scrutinise it properly.

My Lords, the original aim of the Bill was to tackle harm to children, which we can all agree on, but it has expanded enormously and some say represents a real threat to freedom of speech for adults. Will the Minister ensure that he not only sees stakeholders working with those interested in online safety for children but meets free speech organisations and civil liberty campaigners to ensure the Bill does not become a legislative piece of censorship?

The Bill contains strong safeguards for freedom of expression. No platforms will be required to remove legal content and all services will need to have regard to freedom of expression when implementing their safety duties. Of course, although Ministers have met such groups throughout the passage of the Bill so far, I would be very happy to continue to do so to ensure that aspect of the Bill gets proper scrutiny too.

My Lords, as the noble Baroness mentioned, the Bill has been extended. One of the extensions was to financial harm caused online. Will the Government assure us that they remain committed to including strong measures on financial harm? This can hurt people as much as the other forms of harm that we find online.

The context shows the importance of preventing financial harm to people, particularly in the current economic climate. When the Bill comes forward from another place, it will be open to scrutiny by noble Lords on this aspect and many others.

My Lords, the Minister obviously has a very difficult brief to bring before your Lordships’ House. He has barely opened his folder of notes during the course of this Question because all he is able to say is that it is a matter for the business managers, but is it not the case that this is a Bill about which there has been extensive consultation? There is very broad consensus. The only thing now holding it up is an internal row within the Conservative Party. It is not a question of waiting for the business managers. Could he tell his colleagues in the Conservative Party to stop arguing and enable the Bill to be brought forward?

The Bill is being scrutinised in another place by Members of Parliament from all parties. It is important that they complete that work before it comes to your Lordships’ House, but it has benefited from pre-legislative scrutiny by the Joint Committee, which again drew on people from all parties and none. I am keen to see that scrutiny continue in your Lordships’ House.

Could the noble Lord suggest to business managers that if further time is required for the Bill and is not otherwise available, it would be available if the Government were to abandon the ridiculous plans to bring back the Bill of Rights Bill, which the Lord Chancellor appears keen on?

I will pass the noble Lord’s message on to business managers, but he will understand that it is not for me to respond.

My Lords, this seems a classic example of the people we want to protect not getting a voice. Five years’ worth of children have been damaged because of the lack of this. Please can we and the business managers put the children first?

Your Lordships’ House gives voice to those voiceless victims through the right reverend Prelate and, not least, the noble Baroness, Lady Kidron, who has rightly asked this Question today. I am keen for all those voices to be joined in the debate on the Bill as soon as possible.

To go back to one of the earlier questions about financial harms, does my noble friend agree that one of the problems facing the Bill is the way in which things keep getting added to it? Once the Bill arrives in your Lordships’ House—the sooner we can get on with scrutinising it, the better—it is important that we all remain self-disciplined, try not to add things to it and just focus on child safety.

My noble friend makes the sort of wise point that one would expect from a former Leader of your Lordships’ House. I think that is the case with any Bill that comes before Parliament. With this one, which has benefited from pre-legislative scrutiny, Members of both Houses have been able to look at it and wider issues. I look forward to thorough but targeted debates when the Bill comes forward.

My Lords, a number of noble Lords and I were fortunate to attend a round table organised by the noble Baroness, Lady Kidron, with some of the children’s charities. What we heard there, even from my noble friend Lord Gilbert, who believes strongly in free speech, is that when it comes to child protection there really is no debate; there is consensus across the House. The real challenges are some of the harms that may conflict with free speech, for example, but also the issue of harms themselves. Clearly, some definitions of harm suggest that some harms may well be subjective rather than objective. How do my noble friend the Minister and his colleagues intend to deal with some of these subjective arguments over harms?

I pay tribute to my noble friend for his work on this Bill while in office. I saw him at this Dispatch Box answering questions that reflected your Lordships’ eagerness to receive it and begin that scrutiny work. He is tempting me to stray into debates on the Bill itself, which we will have plenty of time for when it comes forward. As I say, the strongest protections in the Bill are for children and nothing in the Bill is designed to harm freedom of expression. The Bill holds those in balance, but I know that is one area that noble Lords will want to scrutinise during the Bill’s passage.

My Lords, has the noble Lord, Lord Kamall, not precisely made the point by pointing out that what we need to do now is talk about the Bill? We are prevented from talking about the Bill for reasons that may be clear to a number of your Lordships but are certainly not clear to me. Is it not time that we get a chance to have the discussions implied in the question from the noble Lord, Lord Kamall? Although Molly Russell was the most—how can one say it? The noble Lord used the word “heartbreaking”—example put before us recently, there have been many others and there will be many more before the Bill gets on to the statute book.

The noble Baroness is right. There have been too many such cases, and we want to get this legislation on to the statute book to prevent as many of those preventable harms as we are able to. I too want to have that debate to continue the scrutiny in your Lordships’ House, but it is important that the other place concludes that before we are able to do so. I hope that it will be engaged in that very swiftly and that the Bill will soon be before your Lordships.

Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Order 2022

Motion to Approve

Moved by

That the draft Order laid before the House on 7 September be approved. Considered in Grand Committee on 3 November

Motion agreed.

Seafarers’ Wages Bill [HL]

Third Reading

Motion

Moved by

My Lords, in moving that the Bill do now pass, I would like to reflect for a couple of minutes on the Bill and its passage. This legislation, although necessarily limited in scope, is a key part of the Government’s nine-point plan to improve seafarer welfare and working conditions. The Bill delivers on the Government’s commitment to ensure that employees with close ties to the UK are paid at least the equivalent of the national minimum wage while they are working in the UK or its territorial waters.

I reiterate the Government’s intention to continue working closely with ports, the shipping sector and unions as the Bill continues its passage through the House of Commons and, crucially, as we develop secondary legislation. We are very grateful to stakeholders for their constructive engagement and interest in the legislation so far and are keen for this to continue.

I will also take this opportunity to clarify a point I made in Committee about seafarers servicing oil and gas platforms. I had previously stated that seafarers on services to offshore renewable energy installations were also covered by virtue of Article 2 of the National Minimum Wage (Offshore Employment) Order 1999. I would like to correct the record and confirm that they are not entitled to the national minimum wage under existing legislation but are considered to already be in scope of the Bill if calling at a UK port more than 120 times per year.

As ever, I thank the noble Lord, Lord Tunnicliffe, and the noble Baronesses, Lady Scott of Needham Market and Lady Randerson, for their constructive approach to each stage of this Bill and to all other noble Lords who contributed, many of whom brought deep and specific expertise. Last but definitely not least, I pay tribute to the work of the parliamentary counsel as well as the House staff, the Bill team, my excellent private office, and my noble friend Lord Younger for his support.

My Lords, I will comment briefly. The Bill is an important first step in the nine-point plan. I am very pleased that the Minister has reiterated her commitment to proceed on that plan; we all wait to see early progress. I will be studying the words relating to the clarification. I thank her and her support staff for the way that she has conducted the Bill. I do not have as many people to thank on my side, but I thank my adviser—who wrote some excellent speeches that the House heard—for supporting this work, and all noble Lords who took part.

My Lords, we on these Benches are absolutely committed to the Government’s aim of improving the pay and conditions of our seafarers. During the passage of the Bill, we heard some egregious examples which gave evidence as to why we need the Bill.

However, we do have concerns about the Bill that remain, falling broadly into two categories. One is the issue of compliance with international conventions, a number of which are potentially challenged by this legislation; the second is over issues around implementation and enforcement, which have been raised by the chambers of shipping, the British ports authorities and the trade unions. All of these have been thoroughly debated; although we continue to have reservations, we saw no point in bringing forward any amendments at Third Reading. I know that the Minister is committed to dialogue with the stakeholders and, therefore, we still hope that some practical ways of dealing with some of these issues may yet emerge.

The general health of the shipping industry is addressed in the Government’s nine- point plan. I was encouraged to hear the Minister on Report talking about the annual report prepared jointly with industry; we can all look forward to reading and potentially debating that. I thank the noble Baroness, Lady Randerson, who has been affected by the rail strikes today and is therefore not here, and the Liberal Democrat Whips’ Office, as well as the Minister’s private office and her team of civil servants for her constructive and always helpful engagement with us.

A privilege amendment was made.

Bill passed and sent to the Commons.

Northern Ireland Protocol Bill

Committee (4th Day)

Relevant documents: 7th and 12th Reports from the Delegated Powers Committee, 6th Report from the Constitution Committee

Clause 18: Other Ministerial powers

Before the noble Lord, Lord Purvis, moves his amendment, I advise the Committee that I will not be able to call Amendments 37 or 38 should Amendment 36 be agreed to.

Amendment 36

Moved by

36: Clause 18, page 10, line 9, leave out subsection (1)

Member’s explanatory statement

This amendment would remove the Minister’s power to engage in any conduct in relation to any matter dealt with in the Northern Ireland Protocol, not otherwise authorised by this Act, if the Minister considers it appropriate to do so.

My Lords, I move Amendment 36. As with previous amendments of a similar character, I am grateful for the support of the noble and learned Lord, Lord Judge.

Clause 18 was neatly described by the former Treasury counsel Sir Jonathan Jones as the “do whatever you like” clause. It was unclear in Committee in the Commons what the Government’s intention behind the clause was. Michael Ellis, the then Paymaster-General, said that the Government needed Clause 18, which is a power to give legal effect to a Minister’s conduct in carrying out their duties. He said:

“It simply makes clear, as would normally be taken for granted, that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation.”—[Official Report, Commons, 20/7/22; col. 1004.]

It is a great relief that we need a Minister to state that. It was quite telling that he said that they needed this power to make their conduct lawful, which would normally be taken for granted.

However, the seriousness is that there has been little explanation on what that “conduct” would be. The Government’s delegated powers memorandum did not explain it. Perhaps that is because they consider this not to be delegated power. The Explanatory Memorandum did, however, give some examples, including issuing guidance. As Michael Ellis indicated, it would also be instructing civil servants. The concern is that we have many other examples where legislation frames the conduct of providing guidance. As the Hansard Society and the Delegated Powers and Regulatory Reform Committee have highlighted, this is one example of disguised legislation. Powers on providing guidance can, in effect, have legal effect. For example, my reading of this clause suggests that it is so broad that it would allow a Minister to issue guidance, which is non-statutory, but also issue instructions that that guidance needs to be followed—which, in effect, is statutory. I would be grateful if the Minister could confirm that that is not within the scope of this clause.

The Hansard Society has sought an exhaustive list of how conduct can be described. If we are to be avoiding hidden legislation, the Government need to be clear in what they seem to do. In the UK Internal Market Act, which has been referred to previously in Committee, I tried to find some equivalent—and there is some equivalent when it comes to the powers of Ministers to provide guidance. However, there are a number of subsections on that power which restrict the Minister’s ability to provide that. Crucially, there is a statutory duty for Ministers to consult with those who would be in receipt of the guidance on the operation of the Act.

Finally, the DPRRC said:

“Despite its being highly unusual and its breadth, the exercise of the power in clause 18 will have no parliamentary oversight since it is subject to no parliamentary procedure.”

Previously in Committee, the noble Lord, Lord Kerr, said that this is not what we do when it comes to breaking international law. This is not how we should be making laws—so broad, and with potentially few restrictions. The Minister simply says that this is about what they do already. If that is the case, why is it necessary? If it is necessary, what they intend to do with it should be spelled out exactly. I beg to move.

My Lords, I just wonder what Clause 18 is supposed to mean. Does it really mean that the Minister of the Crown may do whatever he likes? Yes, it does; that was what we were discussing on Wednesday, when noble Lords and the Government listened to me. I had a dream over the weekend that the Minister today is going to get up and say, “Lord Judge, you were entirely right on Wednesday. We have changed our minds: we are going to put this Bill into proper shape”.

My Lords, I take this opportunity to ask my noble friend the Minister what discussions there have been with the devolved Assemblies and Parliaments as to the process that will be used if these regulations are brought forward.

My Lords, I support Amendments 36 and 38 for the reasons that have been so eloquently set out already—I do not think that I need to repeat them. The idea that Parliament is passing a law to allow a Minister to do whatever he likes without coming back to Parliament seems to be quite breathtaking. That is nothing to do necessarily with Northern Ireland or Brexit; that is to do with our parliamentary democracy. On the question of whether Clause 18 should stand part of the Bill, I would certainly support its removal.

I confess that I find it difficult to accept that just changing “appropriate” to “necessary” will actually sort out the problem that is inherent in so many of the measures in this Bill, because a Minister could easily just say that they are doing it because they think it “necessary”. Who is going to be able to challenge that? The law would still be changed.

I support the idea put forward by the noble Baronesses, Lady Ritchie and Lady Suttie, of at least having approval from the Northern Ireland Assembly. This would once again be an example of the British Government doing something with Northern Ireland, rather than to Northern Ireland—as the current wording would imply.

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, who highlights quite clearly the central proposition in Amendment 38, tabled in my name and that of the noble Baroness, Lady Suttie. It is about limiting the control of Ministers under the Bill by ensuring that the Northern Ireland Assembly is given necessary approval of the conduct in relation to the provisions within the Bill.

Amendment 38 seeks to amend Clause 18, “Other Ministerial powers”, to ensure a limitation of delegated powers to Ministers—the very issue that was discussed by the Delegated Powers and Regulatory Reform Committee—and to ensure that

“the exercise of the Minister’s power to engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol that is not otherwise authorised by the Act to a motion approving the conduct in the Northern Ireland Assembly.”

It throws up the accountability issues relating to the Northern Ireland Assembly—I hope that all the institutions will be up and running eventually—and would ensure that devolved regions and nations have particular control in relation to this issue.

It is worth noting that there were two important developments in the long road of the protocol. Today, the Prime Minister, Rishi Sunak, and the President of the European Commission, Ursula von der Leyen, met in the margins of the climate conference in Egypt and agreed to work together to end the turmoil in relation to the protocol. Also today, at the meeting of the UK-EU Parliamentary Partnership Assembly in this building, Vice-President Šefčovič said that if this Bill were to become law, the UK Government would put Northern Ireland’s unique access to the EU market of 450 million customers at risk.

I again urge the Government to put this Bill into cold storage and ensure that there is renewed political vigour given to the negotiations. It is only through joint negotiations that all the issues around the protocol in relation to east-west issues and to trade between GB and Northern Ireland can be satisfactorily resolved to the benefit of all businesses and people in Northern Ireland.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, here we are again. I could not disagree with anything that has been said by anyone who has spoken. I would like the Minister, for whom we all have real affection and high regard—

Of course, everything is discerning and discriminating.

I would like the Minister to give us two reasons, or even one, why it is sensible to carry on with this Bill. We have heard today from the noble Baroness, Lady Ritchie, that sensible talks seem to be taking place on the fringes of the great COP meeting in Egypt and there are other signs of talking going on, so what is the point—I have used this expression before, and I make no apology for using it again—in Parliament putting government and negotiators into a straitjacket? It is just nonsensical. We all hope the negotiations will result in certain changes to the protocol, but why drive this Bill through at this very time?

The noble Baroness, Lady Suttie, talked about the DUP. I have always felt that it is bad to pay danegeld. That, really, is what is happening here, and it is mixed up with treaty obligations—I underline the word “obligations”—and with opportunities which many people in Northern Ireland wish to take advantage of, suitably amended.

We are on our fourth day of debate on this very bad and, in my view, wholly unnecessary Bill. Let us pause it. Let us watch the negotiations with—I hope—acclamation and welcome their results. Let us not waste parliamentary time on such a badly drafted Bill. As the noble Lord, Lord Pannick, reminded us, even the explanatory clauses do not explain it; they obfuscate and make it worse. Let us get on with some proper business and leave this rubbish in the heap where it should be.

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

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

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

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

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

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

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

My Lords, Amendment 38, among others, refers to the role of the Northern Ireland Assembly in approving the conduct of Ministers. I suppose that a parallel would be a legislative consent Motion; it is the same kind of principle. It is good to hear that negotiations are taking place, but the people who are most directly affected not just by this legislation but by the protocol itself are excluded from this process. Noble Lords should bear in mind that, if a trader brings a vehicle into Northern Ireland from Great Britain, the first person whom that trader will deal with will be an employee of a Northern Ireland government department, responsible to a Northern Ireland Executive Minister.

The people who are the most directly affected and who have a direct responsibility for the implementation of any of these processes—that is, the politicians in Northern Ireland—are spectators in a matter that most directly affects them. Of course, it is a national issue and an international issue; but when you drill down, as Amendment 38 is attempting to do, the people with their hands on the problem on the day, every day, are out of the frame altogether.

Now I do not care what the issue is, but have we learned nothing in this place over the last 30 or 40 years? If you exclude people from something that directly affects them—and we had the Anglo-Irish process in the mid-1980s, when we followed the same principle that you negotiate over somebody’s head and shove a piece of paper in front of them and say, “There you are: implement it”—it will not work.

Amendment 38 is just one example. Will the Minister ask his colleagues to engage the politicians in Stormont directly in this process? That could be part of a solution. When we were part of the EU, it was not unusual for Ministers from Westminster to include devolved Ministers with them in their delegations. That was quite a normal process. Can we not adapt that principle? One Minister said a week or two ago—he meant well, I have no doubt—“Leave it to us. We’ve got your back here. We’ll look after it for you.” I have to say, with the greatest respect, that our backs are so full of dagger holes that we know all about that. We will believe only what we see and hear ourselves. Bring our politicians into the picture; bring them to the table with you so they are not your enemy.

I accept, of course, that we are dealing with an international issue, and foreign affairs and related matters are not devolved—I get that. But have we not enough flexibility to bring people along as part of our delegation so that they can see persons and papers? We do not have to break any rules. What is so secret?

Before he left office, I asked the noble Lord, Lord Frost, who is in his place, a Question about all the committees that have been set up under the agreement and who populated them. I think he left office before he was able to reply to that Question, but who are they? I do not know who they are. Where are they? How many of these committees do we have? All I can tell you is that nobody of political significance in Belfast is engaged. It will not work—fix it. Let us make these discussions meaningful. Let us get the people who have to deliver what is agreed, at the table. We would never have got the Good Friday agreement had we not done that by bringing everybody in.

I have listened at some length to the arguments about the legality of the legislation and its role. I am not a lawyer, but I respectfully invite colleagues to review the evidence submitted to the Sub-Committee on the Protocol in Ireland/Northern Ireland by Professor Boyle and another colleague from the University of Cambridge on what they consider to be the legal position of this legislation. They came to the joint conclusion that the Article 16 process would have to be involved in order to make it legal. I do not know whether that is right or wrong, but I refer Members to that piece of evidence. The transcript is available, it was a public investigation by our committee, and I commend it to colleagues. I ask them to look at it and see what merit there is for us.

There is a solution here; we can find a way through this. However, I can tell colleagues from years of experience—other people in this Chamber can do the same—that, with the process that we have chosen to take, we are going about things the wrong way. I understand where the Government are coming from with the legislation, and I do not wish to see the UK Government’s negotiating position weakened, but I want success. We are facing the worst crisis economically in many decades. Northern Ireland’s community is facing increased costs, in part as a result of the protocol, obviously we have the lowest levels of income, and we also have a different energy system to the rest of the United Kingdom.

Basically, our political class is out to lunch. We are not contributing anything to the solutions, because of the stand-off at Stormont. I do not want to see Sinn Féin’s argument that Northern Ireland is a failed political entity justified, and that is the risk we are taking. My appeal to the Minister concerning any—indeed, all—of these amendments involving support and approval from the Northern Ireland Assembly is that one of the ways to get the Assembly going again is to engage the people who have to operate the outcome of the negotiations, so that they are part of the solution and have ownership of it.

Because we in Northern Ireland are half in the EU and half out of it, there is no total solution to this; it is just a fact of life. It is a problem that is largely insoluble, but there are bits we can help with. Not only do we have to make the protocol less invasive but there has to be treaty change in the long term, because of the constitutional damage that has been done. That will take time, so we have a two-stage rocket here. We have short-term mitigations and long-term treaty change but, in the meantime, leaving Stormont as it is, history tells us, after the last number of decades—we have been through it all, and the noble Lord, Lord Kilclooney, and others were part of the process—that a vacuum is the worst possible thing we can leave in Belfast. It brings in all sorts of events that we cannot anticipate. It takes only one thing to go badly wrong.

I have to say to the Minister and His Majesty’s Government about recent events that there does not appear to be any coherent strategy to deal with things, and that is what worries me more than anything else.

Does the noble Lord accept that in Northern Ireland, when we have a democratic vacuum, the men of violence fill the gap? Is he aware that only last week, because there was a call from Dublin for joint authority in Northern Ireland—government by both Dublin and London—a bomb was planned to be planted in a government building in the Republic of Ireland, which was called off, hours before it was due to explode, only when the Government here announced that there would be no joint authority?

The noble Lord is correct. I agree that history tells us that a vacuum will be filled, and it will not be filled by people who are committed to the democratic process. That is well established. There is no legitimacy for joint authority. The manifesto of the Government was clear in 2019 that it was explicitly excluded, although it was interesting that at this weekend’s Sinn Féin conference, its plan B was specifically aimed at some form of jointery. That is why I say we can see where the road is leading us.

I come back to the Minister and ask him to prevail on his colleagues to open the door to the people of Northern Ireland and the elected Members, so that they can participate in the process of negotiations; they will not be sitting in the front row, but they can be in the room, they can be advising Ministers, they can be contributing and they can feed that back to their supporters. It will have a calming effect if they can see that, and if the people who have to implement the thing on the ground are part of the solution. Surely that makes common sense. What is the point of having devolution if the people who have responsibility for delivering parts of this are not even at the table?

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, this has been unusual in the debates that we have had so far in that far more has been said that I can agree with than that I disagree with. I even found myself agreeing with two-thirds of what the noble Lord, Lord Kerr, said, which is unusual. He is undoubtedly right that the negotiations cannot really be going as well as we would all like to hope, and as so many commentators and Ministers imply they are, as long as the EU has not been prepared to change its negotiating mandate. It will not allow a single jot or tittle of the protocol to be changed under its existing mandate, even though the protocol itself envisages the possibility of it being changed in part or in whole. That surely has to change. Maybe it has de facto; maybe the EU is agreeing to talk beyond its mandate. Let us hope that that is the case.

The disappointing aspect of the debates so far is that I have been waiting throughout for any coherent response from noble Lords, in their very powerful speeches about the illegality of what we are doing, to the questions raised by the noble Lord, Lord Bew, in particular as to what happens when there is a conflict between two international obligations, as the noble and learned Lord, Lord Brown, implied that there is between the obligations that we have under the Belfast agreement and those that we have under the protocol. I have not heard any direct response to that question: what do you do when you have conflicting international legal obligations?

I am very grateful to the noble Lord but the Committee has heard repeated explanations of what the answer is. The answer is that the protocol contains Article 16, which allows for a process to commence by which disputes can be resolved with an arbitration process. That is the answer. There is no conflict because the protocol provides a mechanism for addressing conflicts.

I am grateful to the noble Lord for sidestepping the question by saying that he does not need to answer it because there is an article in the protocol that means you do not have to answer on what happens when there is a conflict between two international obligations. Clearly, however, the Government and many noble Lords from the Province who have spoken think that there is a conflict and it cannot be solved just by invoking Article 16. If it can, fine; that is wonderful.

The other related question that we have not had a response to is the point made by the Lord Chancellor in the other place that Article 1 of the protocol specifically says that in the event of a conflict between the Belfast agreement and the protocol, the Belfast agreement takes precedence. I have not heard any response to that, nor to the point, which I might be alone in making, that the whole protocol is intrinsically temporary. We know that because the EU told us that it could not enter into a permanent relationship with us because we were then a member state and it could not, under Article 50, enter into a permanent relationship with a member state; it could be only temporary and transitional. That is why the protocol itself contains provision for it to be superseded, but I have heard no response to that point from anyone.

I heard the responses given to my noble friend so far, which he seems reluctant to accept. If he does not agree that the Article 16 process would be a way of resolving some of these conflicts that have arisen and caused problems, in what way does he feel that the passage of the Bill would itself resolve those conflicts, or indeed support the Good Friday agreement?

I certainly do not say absolutely that Article 16 is not the way to proceed, but I have spoken to lawyers much respected by people in this House—unfortunately I do not have their permission to give their names—who told me that we should not go down the Article 16 route because it would be a nightmare.

I am sorry to interrupt the noble Lord and I am grateful for his patience, but it really is not good enough, when this Committee is debating these matters, for him to say that there are problems in using Article 16 but not tell us what they are.

I am saying that there may well be problems. Indeed, I asked the noble Lord the other day, down the corridor, whether he was of the opinion that Article 16 could be used to solve all the problems. If it can be, fine; I am not ruling that out. However, if it cannot be, then the issue raised by the noble Lord, Lord Bew, is there on the table, and the issue raised by the Lord Chancellor is there on the table. Whatever about that, the protocol is intrinsically temporary. The whole basis of the negotiations that we entered into on the withdrawal agreement was that a permanent agreement could not be entered into in the withdrawal Act with the United Kingdom covering trade or other matters; that could happen only after we had left. Therefore, anything in the withdrawal agreement was intrinsically transitional and temporary.

Again, I have not heard a response on that today. I wait to be interrupted with a response to the point. Usually, it comes from the noble Lord, Lord Kerr, who wrote Article 50, but he has forgotten what the alternative is.

These are important issues. We need to know why we were told one thing, that this was temporary, and now are told another thing, that it is permanent. Until we get an answer to those questions, I do not know that our debate can proceed as productively as it ought to. There are other more general points which I would like to make but I will save them for another batch of amendments.

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

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

“Despite its being highly unusual”

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

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

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

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

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

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

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

I am very grateful to the Minister. Can I press him for a moment on what I understand to be his explanation for Clause 18, which is that otherwise there may be some concern that the exercise of powers is not consistent with Section 7A of the European Union (Withdrawal) Act 2018? I think that is what the Minister said.

I would put it slightly differently. That is the section I referred to, but it is to provide clarification in that respect. The noble Lord will interpret that in the way that he has, but I have sought to provide clarity on why the Government’s position is that this should be included.

Could I complete my point? I am very grateful to the Minister but I am puzzled by that explanation, because the Bill already deals specifically with this subject in Clause 2(3). I remind the Minister that it states:

“In section 7A of the European Union (Withdrawal) Act 2018 … after subsection (3) insert … This section is subject to”

this Bill. Therefore, with great respect, I do not understand why one needs Clause 18 to address exactly the same point.

My Lords, I suppose that, with any Bill, the challenge for the Government is often to provide added clarification. That is exactly what we are doing, perhaps to emphasise the point that the noble Lord himself has highlighted from other elements of the Bill. I am sure that the noble Lord will come back on these issues, but if I can provide further detail on the specific actions that this would thereby permit, I will. As I said, it is a point of clarification, and I will write to the noble Lord on this point.

The best way I can sum up Amendment 37 in the name of the noble Baroness, Lady Chapman, is that it is a well-trodden theme in the context of the Bill. The positions and different perspectives on this issue are noted. All I add is that the Government’s intention is to ensure that the powers—the ability for a Minister of the Crown to issue guidance to industry or provide direction to officials in relation to the regime put in place under the protocol—reflect their ability to carry out their responsibilities. In this case I can see no reason why Ministers should be able to issue “appropriate” direction in relation to trade with the EU via the short straits but only “necessary” directions over the Irish Sea.

Although the noble Baroness has not spoken in this debate, I know from previous debates that she is worried about the scope of executive action. Everyone is concerned by this when they are sitting on one side of the House. The usual channels of judicial review will be available, but I have noted the various concerns aired in previous debates on this issue of “appropriate” and “necessary”.

I turn to Amendment 38 in the name of the noble Baroness, Lady Ritchie. With her permission, I will first pick up on the valuable contributions of the noble Lord, Lord Empey. We have been engaging with Northern Irish parties. I know that when the Executive was operational there were regular meetings between the then Minister for Europe, now the Secretary of State for Northern Ireland—and indeed my noble friend Lord Caine—and the various representatives. In the interests of time, rather than detailing the level or number of meetings, I suggest to the noble Lord, Lord Empey, as I have said to him outside the Chamber, that we would really welcome his insights and valuable experience in this regard. I speak for my noble friend Lord Caine and others in the Northern Ireland department. Both they and I will be pleased to speak to the noble Lord to see how we can perhaps further enhance the engagement that we currently have on the ground with key parties and people.

The noble Lord’s point about wider delegations and representations is noticed. We value our devolved Administrations very highly in our engagements over international agreements, even when they are under reserved powers. On the wider point of engagement with the devolved Administrations, a point also raised in this debate, my understanding is that those have taken place, continue to take place and will continue to be updated as we make progress.

The Minister just indicated that discussions have taken place with the devolved Administrations. Maybe he can give us a little more colour about the type of discussions that have taken place. In that regard, I very much take the point made by the noble Lord, Lord Empey, that there is a need for the Northern Ireland parties to be involved in the negotiations.

I know that these discussions have certainly taken place at an official level. My understanding is that the Foreign Secretary has also written to the devolved Administrations on the issue of seeking consent, but if there is more detail I will update the noble Baroness.

The noble Baroness also rightly mentioned the importance of understanding the issues on the ground. As I have indicated, I believe passionately that, irrespective of where you are coming from on the Bill—whether you are from Northern Ireland itself or wherever you are sitting in this Chamber—our ultimate objective in the discussions we are having is to ensure that the protocol, and indeed any other arrangements put in place after the negotiations and debates taking place, work in the interests of all communities in Northern Ireland. That is the premise of the Government’s approach.

The amendment the noble Baroness has tabled would require an approval Motion to be passed by the Northern Ireland Assembly before a Minister may act in accordance with Clause 18

“in relation to any matter … in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act)”.

However, in the Government’s view, the amendment is unworkable in practice, because it would require the Northern Ireland Assembly to pass a vote every time any number of actions were taken in connection with the Bill. That could be as innocuous as providing instruction to civil servants or guidance to industry. Such a situation would clearly be prohibitive to the implementation of swift solutions to the problems caused by the protocol, and therefore would not work. Nor would it be appropriate or in line with the devolution settlement for actions—

I am sorry to interrupt but I am most grateful to my noble friend. The noble Lord, Lord Empey, made a very powerful and constructive speech. I listened to what my noble friend said in response to the noble Baroness, Lady Ritchie, but would it not be possible for informal invitations to be issued to Northern Ireland politicians to attend talks, particularly if the talks themselves are informal?

As I said to the noble Lord, Lord Empey, I will certainly take back his comments and constructive suggestions and will, of course, advise the House if there is more scope in our current discussions with the European Commission.

I listened very carefully to all contributions. The noble Lord, Lord Kerr, raised the issue from where he was seeing it. As noble Lords know, when I have come to the House, I have reported. I was certainly involved in one discussion last week and, as I said, it was constructive and positive in both tone and substance. I am sure that all noble Lords who have served in government will appreciate that there are limits to what detail I can share.

Subsequent discussions have taken place, to which the noble Baroness, Lady Ritchie, alluded. I do not share the view of the noble Lord, Lord Kerr, that they are not going anywhere. If they were not going anywhere, we would not be meeting and talking. I also challenge the premise that they have not engaged the highest level of the British Government. Last time I checked, the Foreign Secretary was among those counted in the highest levels of the British Government. I therefore say to the noble Lord, Lord Kerr, that that is definitely not the case. The lead person dealing with Commissioner Šefčovič is my right honourable friend the Foreign Secretary, who is a senior member of the British Government.

Returning to the amendment, for the reasons I have given, we cannot support it. However, I also point out that the Bill is needed because the Good Friday agreement institutions, including the Assembly, are not operating as they should be. I know that the noble Baroness will return to this issue. I welcome her valuable insights in this area, but I hope that, given my response, particularly on the important issues raised by her and the noble Lord, Lord Empey, she sees that we will certainly seek to further enhance our engagement with parties in Northern Ireland.

The noble and learned Lord, Lord Judge, focused on Clause 18, which simply provides the power for a Minister to engage in normal non-legislative contact where they consider it appropriate in connection with one or more of the purposes of the Bill. The clause also clarifies the relationship between powers to make secondary legislation under the Bill and those arising by virtue of the royal prerogative. It will ensure that actions not requiring legislation, such as issuing guidance for industry or providing direction to officials, can be taken in a timely manner by a Minister of the Crown. Clause 18 simply makes clear, as would normally be taken for granted—we just had a brief discussion with the noble Lord on the Government’s position on this—that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation. The Government’s view therefore remains that it should stand part of the Bill.

My Lords, I am grateful to the Minister for his response and to those who have taken part. I felt that I was agreeing 100% with the contribution by the noble Lord, Lord Kerr, but then I started to have doubts when the noble Lord, Lord Lilley, said he agreed with two-thirds of it. I will come back on that in just a second.

In all seriousness, I am concerned about what the Minister said. If this power, which is not framed and not specific, is guidance for industry then that is now in direct contradiction with the requirement on Ministers to provide guidance on the operation of the internal market, under the internal market Act, for Northern Ireland. Section 48, which I understand is being repealed by this Bill, as we have discussed, has a requirement on Ministers to consult before guidance is published. Under Section 12 of the internal market Act it is a legal duty for Ministers to consult Northern Ireland departments before guidance is issued. Draft guidance must be issued first. To some extent, that is the point that the noble Lord, Lord Empey, made about inclusiveness before measures.

If Clause 18 can be used by Ministers—guidance for industry, as the Minister said twice—that is far weaker than the legal requirements, and I do not understand the interaction between the two. That is a significant problem. I would be grateful if the Minister could write to explain how guidance for industry will be operated under other parts of the legislation whereas they can simply decide to do it under Clause 18 because there are no restrictions, requirements or oversight of that whatever—there is no requirement for anything in draft.

That is important, given the subtext of this serious debate and the fact that—as the noble Baroness, Lady Ritchie, indicated—Vice-President Šefčovič is in London at the moment. The Minister did not state whether any Ministers are meeting the vice-president on his visit. I am happy to be intervened on if wishes to clarify whether, during the vice-president’s visit to London, any senior Ministers are meeting him.

This was the subject of conversation, but the noble Lord will be aware that my right honourable friend is currently in Sharm el-Sheikh on government business with the COP. We certainly sought to see whether they could meet on this particular occasion, but I will update the noble Lord as and when it happens.

I am grateful to the Minister.

When the noble Lord, Lord Kerr, says that he is miles away from the situation, I have known him long enough to suspect that there is a wee bit of code there. He is probably actually pretty close to knowing what is going on, and I suspect that he is right. I worry, because the Government are not engaging widely, as the noble Lord, Lord Empey, said, or consulting. We have not had sight of what is on the table; we know what the EU has put on the table but not what the UK Government have put on the table. My fear is that, if the Government told us what was on the table, many people would be disappointed that they are only technical talks. Some people want them to be negotiations.

That comes on to the point made by the noble Lord, Lord Lilley. I respect and understand his disagreement with the Government’s position—the Government want to mend it, not end it, and, as I understand it, the noble Lord thinks there is a more substantial issue with that. Ministers have said they want to fix it, not nix it. If you want to mend it, not end it, there are mechanisms, but there are also mechanisms if you want to end it. As Article 13 of the protocol states, it lasts as long as it lasts:

“Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes”—

so, if there is another treaty, this ends. There is nothing special about that; that is every treaty. A treaty lasts for as long as it lasts, and if there is a subsequent treaty then there is a subsequent treaty. So the noble Lord’s beef is not with us; it is presumably with the Government in order to open up the element of the withdrawal agreement and the associated TCA that he thinks are in contradiction.

Would the noble Lord deal with the Article 50 point? If it is intrinsically temporary and transitional, can it last for ever?

That is the point. We have now legislated for it, and the element we have legislated for includes Article 13.8, which is the process by which it would be superseded. I do not think there is any doubt about it; the noble Lord may have doubt in his mind about it, but in the other agreements there are mechanisms if we wish to open them.

The difficulty with this process taking such a long time is that if we were in grave and imminent peril—the Government have invoked the defence of necessity—then we would have anticipated some urgent, high-level talks to have resolved this by now. Regrettably, we are back to a situation where the stakes are getting higher because expectations are higher, but the reality, perhaps, is that some of these talks are technical.

With the greatest respect for the Minister, who I know tried to offer clarification, I am worried about what this power could be used for, and we will need to return to this. In the meantime, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Amendments 37 and 38 not moved.

Clause 18 agreed.

Clause 19: New agreements amending or replacing the Northern Ireland Protocol

Amendment 39

Moved by

39: Clause 19, page 10, line 17, leave out “the Minister considers appropriate” and insert “is necessary”

Member’s explanatory statement

This amendment limits a Minister’s ability to use a delegated power when they consider it “appropriate” to cases where it is “necessary”.

My Lords, I will allow a couple of seconds for people who have obviously got it off their chest during the first group to leave, in the hope that we do not go through the whole thing again.

Clause 19 is very short, at only a couple of paragraphs, but it is quite interesting, as it pleasingly addresses the situation we may find ourselves in where the Government have been successful in reaching an agreement with the European Union. Many of us have said, time and again, throughout this Committee, that we hope to see that. We have been challenging Ministers, as we have seen in the previous group, to show visible political leadership. The visibility has been lacking. I take on board what the Minister said about his right honourable friend the Foreign Secretary playing an active role, but visibility and political momentum have been lacking. I like to think that, had one of my right honourable friends been leading these events, we would have seen a far more outward-facing presence, if I can put it that way, through this process—but never mind.

Clause 19 looks at the eventuality of there being an agreement. The amendment I have tabled is one that will be familiar by now to noble Lords who have been taking part in this process from the first day of our considerations. The first line of the clause, as it stands, says that:

“A Minister of the Crown may, by regulations, make such provision as the Minister considers appropriate”.

I have asked that “appropriate” be changed to “necessary”, and I will explain why, in this particular instance, that is sensible.

This clause gives Ministers the power to implement an agreement that they hope to reach with the EU. Obviously—and we accept this—Ministers will need some flexibility in that event, and things may need to be done as a consequence of having an agreement. But I would have thought that an agreement, by its nature, would be clear and specific, and that things would be agreed that are not currently in place that would need to happen. In that instance, surely the things that need to be done by Ministers will, by virtue of the fact that they have just been agreed to with our negotiating partners, meet the test and be necessary.

It troubles me that the Government feel they should have “appropriate” there instead. That seems to give them much greater scope than is ever going to be needed in the event that this clause is used—and we hope that it will be. I would like to know from the Minister what the Government’s thinking is there, beyond thinking that “necessary” is too tight and just wanting to allow themselves a bit more room—of course they do; who would not? But this clause deals with the fact that there may be an agreement, and I do not think it is justified for the power to be as widely drawn as it is.

While I am on my feet, I note that I support the stand part notice from the noble Lord, Lord Purvis, in this case as well. The DPRRC believes that the powers in this clause are just too widely drawn, though there is obviously merit in discussing what powers are needed in the event of an agreement and what the role of Parliament should be in that situation. We think that a deal can be struck—we have said that many times—and also believe that Parliament should have the opportunity to debate any agreement, as other Parliaments will. I just note that the European Union (Future Relationship) Act 2020 was passed in a day and the TCA was ratified without direct parliamentary process. We accept that Ministers need the ability to act in the event of an agreement and we appreciate the Government demonstrating their anticipation of such an agreement in this clause, which is notable, but surely a Bill to enact an agreement would be better. That is what we have been asking for.

This is a discussion we have had with the Government on many occasions and on other agreements, when we have talked about the unsatisfactory process we still have in this country for parliamentary involvement in agreements. We do not think we have got it right yet; that is understandable, and it is perhaps going to take some time to get to that point. We have not had to engage in this for many years, but I do not think that many people in Parliament are satisfied with the way this works at the moment, and it would be helpful if the Minister could acknowledge that.

Without being too cheeky about it, we want to help the Government, given just how unsuccessful they have been so far in settling these issues. We do not see why they would be so resistant to involvement from people who are being very positive and cheering them on in their endeavours. We really do want to see a resolution to this. With that, I beg to move the amendment in my name and express my support for the stand part notice tabled by the noble Lord, Lord Purvis.

We support the amendment in the name of the noble Baroness. In supporting it, I want to make two points. First, this clause effectively turns the Constitutional Reform and Governance Act principles on their head. We have well-established mechanisms, which are set down in statute, on how we approve new international agreements. If this is a mechanism to replace the Northern Ireland protocol, an internationally made agreement, with a new agreement, then why is the CRaG process, which allows parliamentary scrutiny, debate and, unlike this, an ability to have enhanced approvals or indeed vetoing by Parliament, not going to be the route for it? I do not understand why.

Secondly, it also sets on its head every commitment that has been provided for every trade agreement: namely, that if a trade agreement requires any primary legislation to bring it into effect in domestic law, primary legislation is brought forward—this is not done by regulation. But, again, this is being set on its head. The Trade (Australia and New Zealand) Bill is coming up, which is primary legislation—not regulation —implemented with agreement. The two Bills contradict each other really quite glaringly.

I think that this is significant because of an interaction I had with the noble Lord, Lord Dodds, on one of the previous days in Committee. I asked him whether he had given consideration—if there is, as a result of these talks, an agreement with the EU—as to how that should be put in force. The Government are saying “by regulations”, which are unamendable and could even be under a negative process; they could use Clause 19 to do this. If the noble Lord’s concern—as well as that of the noble Lord, Lord Empey—was about the need for consent, this is not the means by which that would be secured. Yet this is the means by which the Government could enforce it. There is a very jarring comparison between what consent of any new agreement would be and how the Government are seeking powers under Clause 19 to enable them to put this into force. Clause 19 should not be the mechanism by which we have sustainable support for any agreement. An order-making power for a Minister is simply not the route—and that is in addition to the fact that they are turning on their heads long-standing practices by which we put international agreements into domestic legislation. For this reason, I do not think that Clause 19 should stand part of the Bill.

My Lords, I speak briefly to support Clause 19 not standing part of the Bill. Both the noble Baroness, Lady Chapman, and the noble Lord, Lord Purvis, have very eloquently explained some of the problems with this clause. Equally, I have a concern about just changing the word “appropriate” to “necessary”, because we had a relevant agreement with the EU—the withdrawal agreement, part of which is the Northern Ireland protocol—and we have passed extensive legislation for that agreement. Yet government Ministers consider both this Bill and this clause “necessary”, even though it may break international law and may tear up the agreement that we have enshrined into our law. So were this clause to stay—and, indeed, were this Bill to become an Act—there would simply be the possibility that a Minister would no longer need to come to Parliament, Parliament would have no say and our whole parliamentary democracy would be turned on its head, as the noble Lord, Lord Purvis, described. I would like to hear from my noble friend the Minister how this is consistent with our normal constitutional safeguards in our democracy.

My Lords, I thank all noble Lords for their contributions to this brief debate. I turn first to Amendment 39. I welcome the points made by the noble Baroness, Lady Chapman; I was scribbling down some of them, including the phrase, “Cheerleader for the Government”—we look forward to that. I recognise that these are serious times in terms of our negotiations. Of course, it is right that we are being challenged, but contributions have also been made which are helpful in ultimately strengthening the role we want to see for all discussions: a successful conclusion in the interests of all communities in Northern Ireland.

As for discussions and diplomacy, I have a bit of experience, as do other noble Lords around this House. One thing that I have certainly learned as a lesson of diplomacy is that discretion is key—it is vital. At times, there is a sprinkling of public discourse in that respect. I assure noble Lords that discussions and a number of meetings are being held. Indeed, I mentioned to the noble Lord, Lord Purvis, that my honourable friend the Minister for Europe met Commissioner Šefčovič during his visit on this very issue. The fact is that the engagement continues. I have already detailed why my right honourable friend was unable to meet on this occasion.

We have now seen how the implementation of the current protocol—I think all noble Lords accept this—is causing problems. We are looking for solutions. We feel that limiting the Government’s ability to act quickly and flexibly if such a negotiated outcome with the EU needs to be implemented could ultimately disrupt what we are all seeking to do, which is to address the socio-political stability in Northern Ireland and safeguard the EU single market and the UK single market.

I say again, for the record, that a negotiated agreement is the Government’s preference and the outcome and detail of that will be shared as necessary. But having the discretion for Ministers to choose the best implementation is surely in our best interests.

I shall come to the important point also raised by the noble Baroness, my noble friend and the noble Lord, Lord Purvis, on Clause 19 standing part, which is related to this. As all noble Lords have said, Clause 19 gives power to Ministers to implement a new agreement with the EU as soon as one can be reached. As I have said, a negotiated agreement with the EU remains our preferred approach and this clause facilitates that commitment, as the noble Baroness acknowledged.

I want to address the central point. The noble Earl, Lord Kinnoull, is not in his place but I gave him a brief reassurance on the Constitutional Reform and Governance Act 2010 in a previous debate—a point also made by the noble Lord, Lord Purvis. I assure noble Lords that this Bill does nothing to affect the procedures applying under that Act, so any new treaty replacing the protocol or amending it will be subject to the usual pre-ratification scrutiny that the Act provides.

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

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

If that is the case, would the Minister be sympathetic to an amendment on Report that puts that in the Bill?

My Lords, I think my priority is to complete Committee. Of course, I look forward to Report and the amendments proposed and that is when we will have further discussions on this matter—

Before the Minister sits down, can he tell me whether there are any other circumstances in which the Government have promoted a clause containing terms such as these that he now urges upon us?

My Lords, I am sure the noble Lord will excuse me if I say that I do not have an instant response to that, but I will certainly talk to my officials and, if there are details to provide, I shall of course provide them to the noble Lord.

There is nothing in Clause 19 on consent. If there is an agreement, what is the Government’s position on securing consent for it?

My understanding is that we would certainly abide by our previous commitments in that respect. In the interests of clarity, I will confirm that in writing to the noble Lord.

I do not think we are very happy about this. The Minister says that he wants to address stability in Northern Ireland, yet this whole process goes over the heads of people in Northern Ireland. We heard from the noble Lord, Lord Empey, and others just how unsuccessful they expect that to be. There are so many issues here, I just do not understand why Clause 19 is required when there are processes available to the Government to do this. We shall come back to this, but the only thing about saying that we shall come back to it on Report is that we do not know whether we will actually get to Report, given the amendments that we discussed before we started our formal consideration of the Bill. We still have not heard anything from the Government on that. Obviously, we shall leave it for today but the discussion we have had leaves a few more questions than answers. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Clause 19 agreed.

Clause 20: Role of the European Court in court and tribunal proceedings

Amendment 40

Moved by

40: Clause 20, page 10, line 32, at end insert—

“but this section does not have effect unless it has previously been approved by a resolution of the Northern Ireland Assembly.”Member’s explanatory statement

This amendment would prevent the Bill’s proposed departure from the terms of the Northern Ireland Protocol, or from any related provision of the EU withdrawal agreement, in respect of the previously agreed role of the European Court (CJEU) unless Clause 20 had first been approved by the Northern Ireland Assembly.

My Lords, Amendment 40 in my name is co-signed by the noble Baroness, Lady Ritchie of Downpatrick. Like so many of the earlier and similar amendments, it aims to ensure that the democratically elected Northern Ireland Assembly would have the final say on whether Clause 20 is to be implemented. In many ways, this is a probing amendment following what I felt was a very constructive and useful speech from the noble Lord, Lord Empey, who I am very glad to see back in his place after an absence. In doing this, it is incredibly important that we make sure that there is greater involvement of the Northern Ireland political parties at every stage. Perception is all in politics and, whether or not the Minister says that meetings are taking place, the representatives here from Northern Ireland do not feel that they are taking place. Therefore, they are obviously not working as they should be.

As the noble Lord, Lord Hain, who is not in his place, spelled out so clearly on an earlier group of amendments, Clause 20 would mean that domestic courts and tribunals cannot refer any matter to the European Court of Justice in relation to the Northern Ireland protocol. Last week, the noble Lord, Lord Hain, also spelled out very clearly the potential impact of this clause on the single electricity market on the island of Ireland. My honourable friend Stephen Farry MP, when speaking in the House of Commons about a very similar amendment, made the point that if the ultimate jurisdiction of the European Court of Justice is removed, Northern Ireland’s ability to access the single market for goods will be jeopardised or destroyed. A level playing field overseen by the European Court is surely in the interests of many Northern Ireland businesses and can protect access to the market in years to come. It will also protect such businesses against situations that may arise in future if any EU member state were to attempt to refuse goods coming from Northern Ireland.

Politically, it is worth stressing once again that the majority of businesses in Northern Ireland have adopted our somewhat pragmatic approach to the protocol and that the jurisdiction of the European Court has not previously been seen as a major area of concern. It is therefore hard not to draw the conclusion that Clause 20 has more to do with Conservative Party divisions and the ERG than it has to do with genuine political and business concerns in Northern Ireland. For those businesses that primarily deal with north-south trade or with the EU, any reduction of the jurisdiction of the ECJ would potentially have a profound impact on them. It is for that reason that it is very important that the Northern Ireland Assembly should be able to have its say on these matters. I beg to move.

My Lords, I will speak in favour of Amendment 40 in my name and that of the noble Baroness, Lady Suttie, and will refer to Amendments 42 and 43A in my name.

In many ways, Amendment 40 seeks to protect the role of the European Court of Justice and to ensure adherence to the accountability mechanisms of the Northern Ireland Assembly. Adherence to the provisions in the GFA—the Good Friday agreement—are of vital importance, and any change in the protocol with respect to Clause 20 can go nowhere unless approved by the Northern Ireland Assembly.

While this is a probing amendment, like the noble Baroness, Lady Suttie, I go back to the comments made by the noble Lord, Lord Empey, about the role of Assembly Members in the Northern Ireland Assembly. Absolutely no account, recognition or acknowledgement has been taken of the role of locally elected Members of the Northern Ireland Assembly in relation to this Bill. He is absolutely right when he says that, if they have buy-in and ownership, there is greater likelihood that the UK Government and the EU will achieve a degree of resolution on many of these vexatious issues.

Many elements of the protocol are already working well for business in Northern Ireland; for example, in relation to dairy, beef and agri-food industries. But it is important to note, as the noble Lord, Lord Empey, and other noble Lords have said—and I think the point has been made by my noble friend Lord Murphy—that negotiations succeed in Northern Ireland only when the parties are sitting around the table with the UK and the EU. So I ask the Government, in their discussions with the European Union, to try where possible to exercise a degree of flexibility that would facilitate such discussions taking place in a more all-encompassing manner.

I move on to Amendment 42, which seeks to ensure that, when the UK-EU joint committee has discussed regulation of goods in connection with the protocol, there is a full report to Parliament detailing those discussions within 21 days of the meeting. In the previous discussion on the first group of amendments, when queries were put by noble Lords about the nature and content of the negotiations with the European Union, I am afraid we did not get very much back about the actual content or level of solutions. Therefore, we are left with a query in our minds about what progress is actually being made in those technical discussions; hence the need for renewed vigour in continuous, senior political engagement at a UK/EU level.

Amendment 42 rightly emphasise the role of the Assembly and the north-south institutions of the Good Friday agreement. That is further emphasised in Amendment 43A, which requires adherence by a UK Minister in the UK-EU joint committee meetings

“to respect, reflect and support proposals made by the Strand 2”

GFA implementation bodies. That goes back to the fact that many of the implementation bodies are inextricably linked to membership of the European Union—I am thinking of InterTradeIreland and Tourism Ireland. It is important that Ministers support proposals on the regulation of goods made by the strand 2 bodies in the joint committee meetings.

It is important that we revert back—I urge the EU and the UK to do likewise—to the spirit and intention of the Good Friday agreement. It is fitting that, tonight, in another part of the parliamentary estate, a painting of the late John Hume, by the renowned Northern Ireland artist Colin Davidson, is being unveiled by the Speaker of the other place. In many ways, John Hume was the architect of the three-stranded approach that emerged in the Good Friday agreement, and the spirit of co-operation, partnership and working together. That can be achieved only when all the facets—namely the UK, the EU and the Northern Ireland parties—work together to achieve solutions in the best economic, political and societal interests of all of the people of Northern Ireland.

My Lords, like the noble Baroness, I hope to be able to be present for the unveiling of the portrait of the late John Hume. It is a pity that our recently departed colleague Lord Trimble is not able to be there for that extraordinary occasion.

It seems to me that what the noble Baroness, Lady Suttie, said was wholly in tune with what the noble Lord, Lord Empey, said earlier in our debates: how important it is to involve the politicians in Northern Ireland. It is also important to do something else, which was touched on by the noble Lord, Lord Kerr of Kinlochard, in his speech just half an hour ago. I am very glad that the noble Lord, Lord Murphy, is in the Chamber at the moment, because the noble Lord, Lord Kerr, talked about the crucial importance of involvement at the highest possible level. We would never have had any agreement without John Major and Albert Reynolds, built upon by Sir Tony Blair, the noble Lord, Lord Murphy, and others. It is very important indeed.

No one appreciates more than I do, I hope, the tremendous tasks facing our new Prime Minister, and I wish him every possible success. However, as soon as it is possible, he should involve himself. He should go over to Belfast and meet the Northern Ireland politicians, the Taoiseach and others, because there has to be involvement at the highest level. The success of such talks would be increased if this wretched Bill were at the very least paused.

My Lords, I want to make a brief comment on Amendment 40, which is about approval by a resolution of the Northern Ireland Assembly. In support of this amendment, it has been stated that adherence to the spirit and intention of the Belfast agreement is vital. But if we are to be faithful to that agreement as amended by the St Andrews agreement, and to its spirit and intention, then the amendment is defective in that it does not include cross-community consent. Is this a resolution by cross-community consent?

The point that I have made—and as other noble Lords who are aware of the details of the Belfast agreement will know—is that every major decision in the Northern Ireland Assembly is made on a cross-community consent basis. That means a majority of nationalists, a majority of designated unionists and a majority overall. Anything that is not specifically a cross-community vote is capable of being turned into one by a petition of concern. If you are using the argument that you are defending the Belfast agreement, as amended, then why is the cross-community element of resolutions in the Northern Ireland Assembly left out? Why is that the case? Why is it not required to have the support of unionists and nationalists? That is the basis on which the Belfast agreement was written.

My second point is about the involvement of Northern Ireland parties. I have a lot of sympathy there, but it is worth bearing in mind that in the run-up, between 2018 and 2020, when we had all the discussions about the backstop and negotiations overall, the Irish Government made it clear on a number of occasions to us that they did not wish to have any engagement directly with political parties in Northern Ireland on the issue of Brexit. They did not see a role. Nor did Michel Barnier see any role for the political parties in Northern Ireland; I put that point to him directly in his office in Brussels.

Lest we move to the position that the British Government have prevented this or not done enough, I say that the Irish Government and the Brussels Commission were very clear: “This is a matter on which the EU is represented by Monsieur Barnier. He speaks for the EU.” Leo Varadkar was very clear when we met him in Belfast and urged him to encourage a more imaginative approach that would involve the Northern Ireland political parties and the Irish Government talking directly to political parties about Brexit—and the UK Government, of course. That was rejected: “No, Michel Barnier speaks for the EU. It is between Her Majesty’s Government”, as it then was, “and the EU. There is no role for anyone else.” That was spelled out explicitly.

While I have a lot of sympathy with the proposition, this is not as straightforward as it would appear. I think some of the problems we have seen might well have been made easier to resolve had there been more flexibility on the part of the EU and the Irish Government, but it needs to be put on record that it was and, as far as I understand it, remains, the position both of the Dublin Government and Brussels. It would be very interesting to see whether Leo Varadkar maintains that position when he takes over as Taoiseach in a few weeks’ time. It would be worth exploring that with the Irish Government, because the portrayal that this has been a one-sided exclusion is not accurate.

My Lords, I did not intend to come in at this stage—there are further amendments later that I am interested in making a contribution to—but I agree with an awful lot of what the noble Lord, Lord Dodds, has said. Over the last year or two, I have been complaining that the real difficulty in this negotiation, if that is the right word to use for it—and I do not think that it is, by the way—lies in the way the protocol was born. Whatever the rights and wrongs of the protocol, or of the Bill—and I think there is an awful lot wrong with it—I am not at all convinced it is doing what it set out to do: in fact, it has failed to do that, because the DUP has not moved considerably because of the nature of the Bill. One reason is that the negotiations have been almost exclusively between the European Union on one hand and the British Government on the other, as the noble Lord, Lord Dodds, said. That is a fundamental problem.

I understand why the Irish Government feel that way. They are part of the European Union; the European Union negotiates on their behalf. I thought it would be a good idea if that were reversed: the Irish Government could have negotiated on behalf of the European Union because, as we have heard a number of times this evening, the issues we are dealing with reflect two international agreements. The first and overriding one is the Good Friday agreement. That is an international agreement lodged at the United Nations and it overrides everything, so far as we can see, with regard to the future of Northern Ireland. How on earth can officials from the European Union understand the issues facing Northern Ireland in the way that the Irish Government could?

That reflects too, of course, on how you involve the Northern Ireland parties. If anybody thinks that this whole issue is going to be resolved in Brussels, that is for the birds. The issue is to be resolved in Belfast: that is where the impasse is. The impasse is: why have we not got the institutions of the Good Friday agreement up and running? It is simple. It is because people have not talked to each other. There have not been proper negotiations.

I spent five years of my life negotiating in Northern Ireland so I know how intense those negotiations have to be. There were negotiations involving the European Union at some stage, but nothing like the negotiations between, on the one hand, the two Governments—the British Government and the Irish Government—and, critically, the Northern Ireland political parties on the other. In the end, they will have to decide this.

One of the great tragedies of all this—it was not the fault of the DUP; it was the fault of Sinn Féin, in this case—is that the Assembly and the Executive were brought down over the then Irish language Bill. The result was that there was no proper Executive comprised of the parties in Northern Ireland, who could have discussed all the issues we have been discussing for the past three weeks. Had there been a proper Executive and Assembly up and running, we would not—I hope—be here in the way we are. I have a lot of sympathy for what the noble Lord, Lord Dodds, said.

I still hope that, over the next few months, the Irish Government can discuss meaningfully with the British Government. I particularly hope that there are proper, meaningful negotiations involving the political parties in Northern Ireland. By that, I mean negotiations; I do not mean going to Belfast for a couple of hours, meeting the political leaders, and then coming back again. That is not going to work. You have to get people around a table. You have to involve all the political parties in Northern Ireland. You have to do the things that we have done over the past 10 or 20 years to achieve a real, lasting solution to this issue. What we are doing now is a sham. It will not solve anything at all. The only way we can do it is through negotiations that involve the Governments and the political parties in Northern Ireland.

My Lords, I want briefly to follow what the noble Lords, Lord Murphy and Lord Dodds, have said. The noble Lord, Lord Dodds, may be right about the European Union not wishing to negotiate with regional politicians. It has a long-standing position on that; the EU-Canada trade agreement got bogged down because of the Wallonians, I think, who blocked it for quite some time. But never mind what the European Union or Dublin thinks. This is what matters: what our own Government decide on who is going to speak for the United Kingdom at these talks. If our Government decide to involve people and politicians in Northern Ireland, that is our business. It is not the European Union’s business. At the end of the day we know what its stance is, but that is neither here nor there if our Government decide that they are going to create their own negotiations. Who they take advice from and consult in the United Kingdom is entirely up to them, so I do not see that as an obstacle.

I gently remind the noble Lord, Lord Dodds, that the first decision in our amendment to the Belfast agreement at St Andrews was to remove the necessity for cross-community consent for the election of the First Minister. Had that remained as it was, Sir Jeffrey Donaldson would be First Minister, not Michelle O’Neill.

My Lords, I shall make a short comment on Amendment 40 proposed by the noble Baronesses, Lady Suttie and Lady Ritchie of Downpatrick. It says that

“this section does not have effect unless it has previously been approved by a resolution of the Northern Ireland Assembly.”

Surely that is not an honourable reflection of the Belfast agreement, which, as the noble Lord, Lord Murphy, told us, overrides all the international agreements. The spirit, and a fundamental pillar, of the Belfast agreement is cross-community support. If what the noble Baronesses are saying is that the amendment actually means “by a resolution of the Northern Ireland Assembly with cross-community support”, I challenge them to put that in and make that clear. However, I know from the previous contributions of the noble Baroness, Lady Ritchie, that she does not mean that. She means a simple majority and going back to majority rule, which has disappeared in Northern Ireland over the past 50 years—much at the behest of her former colleagues.

I therefore challenge the noble Baronesses to state clearly: do they desire recognition and an honourable reflection of the fundamental pillar of the Belfast agreement? When they speak about

“a resolution of the Northern Ireland Assembly”,

are they clearly stating that that is with cross-community support? If they are not, then they are not upholding the Belfast agreement and all the pretension in this Committee is only empty rhetoric.

My Lords, I draw attention to the suggestion that Clause 20 should not stand part. During these Committee debates, we have addressed a number of extraordinary provisions in the Bill that give exceptional powers to Ministers, but Clause 20 really does take the biscuit, if that is a parliamentary expression. Let me emphasise what it provides. It provides that the role of the Court of Justice in Luxembourg is excluded, which we will all have a view about, but it goes on to say that Ministers can, by regulations, recreate the role of the European Court of Justice. Is it not quite extraordinary that a Minister should be able, by regulations, to confer a power on an external body to sit as the final judicial body determining issues that are relevant for the purposes of English law? Whether you agree with the role of the Court of Justice or disapprove of it, it cannot be constitutional for a Minister of the Crown to have an exceptional power to decide who and what is the final court of appeal for this country.

I very much support what the noble Lord, Lord Pannick, said, and add that it seems quite astonishingly narrow-minded and short-sighted to want to be rid of the European court in these circumstances. We heard at length last week about the effect on electricity, but there is a wider effect.

May I just put in a word of defence of the European court? I happened to visit it on numerous occasions. It has made some extraordinarily sensible decisions that have affected this country and particularly women, which is one of the reasons I support it. It is quite extraordinary that a Conservative Government, who I always thought had a broad view, should be quite unbelievably narrow-minded, and that some quite erroneous view of sovereignty should be taking over from the crucial role that the ECJ has to play in the work we are considering.

I echo, from a non-legal point of view, the points made by the previous two speakers but, when looking at the European Court of Justice and its role under the protocol, I imagine that even the noble Lord, Lord Lilley, would not contradict the point that I am about to make, which is that the properly constituted British Government, supported by the properly constituted British Parliament, entered into a treaty that gave a role to the European Court of Justice. That is a simple fact. It is there, written. It is another simple fact that there is no provision in the protocol to remove that role of the European Court of Justice—none.

What we are talking about is a breach of our international commitments. I am sure one of the noble Lords on the Front Bench will again hotly deny that this is the case because, like the Red Queen in Alice, their only argument is, “It is so because I say it is so”. Fortunately, that is not a terribly convincing argument in this place, where occasionally—not all the time—reason has a way of prevailing. I should like to suggest that we recognise this reality, which is that the Government’s attempt to remove the European Court of Justice unilaterally from two international treaties, which they entered with the consent, support and approval of Parliament, is a breach of our international commitments.

My Lords, we had a brief debate on matters relating to the European court last week, which largely focused on the earlier parts of the Bill. It is helpful to have this opportunity to deal with some of these issues in more detail.

The agreement reached with the EU on the status and role of the CJEU in relation to the protocol and other parts of the withdrawal agreement was carefully crafted and informed part of the oven-ready deal the Conservative Party was proud to call its own. There is some logic in what Clause 20 seeks to achieve. If the protocol no longer functions as intended, the legal processes cannot either, but that is only if one accepts that it is acceptable to tear up a binding international agreement in the first place.

The power for Ministers to introduce some form of referral process is interesting and a little surprising. It seems to contradict the earlier power in subsection (2). From a practical point of view, would not any referral scheme work only if the EU and European court agreed to engage in the process? Would this point not need to be negotiated?

There has been a wide-ranging debate on these issues, but it seems that there are some very practical consequences of trying to put into place a new referral process while at the same time needing to negotiate with the organisation one has just torn up a formal agreement with. How would that work in practice?

My Lords, I am grateful to noble Lords for their participation in this debate. I will first address Amendment 40 in the name of the noble Baroness, Lady Suttie. I am delighted to see her in her place and will do my utmost to address her points, as I turn to the first group.

The amendment would require a positive resolution of the Northern Ireland Assembly before the provisions of Clause 20 can be brought into force. I point out, and it is a matter that the whole Committee is seized of, that we need to see the restoration of the institutions as quickly as possible. It is because of the breakdown of those institutions that the Government consider that the Bill is needed.

Clause 20 engages a complex combination of the transferred, devolved and reserved matters relating to foreign affairs and the court systems of the United Kingdom’s three jurisdictions. It would not be appropriate for the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation relates to a reserved matter.

Clause 20 is a key part of the Bill. It addresses how we treat CJEU case law, principles, and references, including in relation to those parts of the protocol that we are excluding in domestic law. I will come back to this point, but to reiterate matters taken at earlier stages before your Lordships, this is not a ripping up or tearing up of the protocol, but a recognition that parts of the protocol are not working and parts are. We seek to retain those parts that are working and dispense with those that are not.

I thank the Minister for giving way. Does he not agree that it would be much better to undertake such discussions through negotiations themselves to correct those parts of the protocol that may be causing concern at this moment in time?

I stress, not for the first time from the Dispatch Box by myself or my noble friends on the Front Bench, that the Government’s preference remains for a negotiated solution.

The Chamber and the other place have heard from representatives of the unionist community that the presence of the European Court of Justice in the protocol is at the heart of the democratic deficit issue. Absent the provisions of Clause 20, we could end up in an incoherent position whereby substantive provisions of the protocol are disapplied but new CJEU case law associated with those provisions continues to apply. For that reason, and the others I have outlined, I urge the noble Baroness to withdraw her amendment. I emphasise that bringing back the democratic institutions in Northern Ireland is the Government’s priority.

The noble Baroness, Lady Ritchie, my noble friend Lord Cormack and others raised the matter of engagement with Northern Ireland politicians. I look to the noble Lord, Lord Empey, as well, on this matter, and the noble Lord, Lord Dodds of Duncairn, touched upon it too in his submission to your Lordships at this stage. This is an important point. The Government have committed to ensuring that representatives of the Northern Ireland Executive are invited to be part of the United Kingdom delegation in meetings of the specialised and joint committees discussing Northern Ireland matters, which are also attended by the Irish Government. Also, when the Northern Ireland Executive was functioning, the then Foreign Secretary regularly met the First Minister and Deputy First Minister of Northern Ireland, along with the Secretary of State for Northern Ireland, to discuss the protocol.

However, to reiterate the principal point, the point which brings this Bill before your Lordships’ House, the institutions are not functioning, and precisely because of the protocol. We will continue to engage, but the protocol has made things that bit more difficult.

The Advocate-General will have had the opportunity to reflect on a previous day in Committee, when concerns about the single electricity market were raised. A key component is EU law, which is not in question. How does the Advocate-General anticipate that the joint regulatory system operating under our approach and that of the EU can operate if EU law cannot be interpreted?

My Lords, interpretation of foreign law is a matter with which all three jurisdictions in the United Kingdom are familiar. With the noble Lord’s leave, because my remit does not extend to the operation of the single electricity market, which, as he said, was touched upon by the noble Lord, Lord Hain, in an earlier group, I will defer to my noble friends on the Front Bench and will write to the noble Lord on that point. I am grateful to him for his forbearance.

I cannot properly address the possibly important proposition raised by the noble Lord, Lord Murphy of Torfaen, in his submission to your Lordships, anent having the Government of Ireland lead the European Union in terms of negotiations. That matter will have been heard by others in the Government and given appropriate significance. It is a novel proposition expressed with the noble Lord’s customary force. I am sure that the Government will look at it.

The noble Lords, Lord Dodds of Duncairn and Lord Empey, gave us the historical background and again laid emphasis which was valuable to us all regarding the importance of the cross-community aspect of the Belfast/Good Friday agreement. As I have said, briefly, the CJEU’s position has been identified as a major obstacle.

Your Lordships’ Committee heard something about the value to be given to polling; I think the noble Baroness, Lady Hoey, raised that as an earlier stage, contrasting polls with actual democratic exercises. However, I can say to the Committee that polling carried out by Queen’s University in Belfast has indicated that with people who have concerns about the operation of the protocol, the CJEU and its presence and status was identified as a significant problem.

If the role of the court of justice is, as the Minister puts it, a major obstacle because of democratic deficit, as he describes it, can he please explain to the Committee why Clause 20(3) would give an express power to Ministers to make regulations which would provide for a role for the court of justice? Surely that is inconsistent with what he just said.

I am grateful to the noble Lord for raising the point. The Government have always anticipated that the United Kingdom courts will be the final arbiter. The clause to which the noble Lord just referred your Lordships provides for the creation of a reference mechanism, but United Kingdom law would ultimately prevail.

The noble Baroness, Lady Ritchie of Downpatrick, addressed us on Amendments 42 and 43A. I argue that those proposed new clauses are in some respects unnecessary and in some aspects of their drafting inappropriate. Article 14(b) of the protocol already requires the specialised committee to

“examine proposals concerning the implementation and application of this Protocol from the North-South Ministerial Council and North-South Implementation bodies set up under the 1998 Agreement”.

That is an appropriate and valuable role. We submit that, by contrast, the noble Baroness’s amendments would create a statutory obligation for the United Kingdom to support

“proposals relating to the regulation of goods made by the North/South Ministerial Council and other North-South implementation bodies”.

That would cede control over the United Kingdom Government’s stance in the joint committee to a council in which the Irish Government sit. We consider that that would be inappropriate. The Government already ensure that representatives from the Northern Ireland Executive, as I said, are invited to meetings of the joint committee which discusses specific Northern Ireland matters, and which is attended also by the Government of Ireland. Therefore, we submit that there is already ample opportunity for representations to be made at the joint committee from both north and south.

We submit that the aspects of new clauses obliging the Government to lay reports before Parliament are also unnecessary. The Government have committed already to lay Written Ministerial Statements in Parliament before and after each meeting of the joint committee, and already do so. We also provide explanatory memoranda on matters to be discussed at joint committee meetings.

There is a more fundamental objection yet. The Bill is designed to restore the balance across all three strands of the Belfast/Good Friday agreement. The analogy with the milking stool has already been made: the three legs are of equal importance. To further empower the north-south dimension to the comparative detriment of the east-west dimension, as the amendment would do, will, we submit, exacerbate the problems facing Northern Ireland and undermine that delicate balance of the Belfast/Good Friday agreement. In that spirit, I urge the noble Baroness to not move her amendments.

Can I just ask the noble and learned Lord as a lawyer what he was meaning when he gave an explanation on Clause 20(3)? I may be very stupid, but I could not understand a word of it.

The noble and learned Baroness doubtless speaks rhetorically. I have the utmost respect for her intellect, as does the whole House. My position, which I sought to express, was that the clause will provide a mechanism by which a reference could be laid before the Court of Justice of the European Union, but that ultimately British law, in whatever of the three jurisdictions it is operating, will prevail over that. It is a reference procedure.