Examination of witnesses

James Cleverly MP and Olaf Henricson-Bell.

Q1 The Chair: Welcome to this hybrid House of Lords and to the European Affairs Committee and a ministerial evidence session this afternoon with James Cleverly MP, who is the Minister of State in the Foreign, Commonwealth and Development Office. He is being supported this afternoon by Olaf Henricson-Bell, who is a senior director within the FCDO. Welcome, Minister. I know how busy you are, not least from just the list of your many responsibilities that we will come on to.

This is a public evidence session so a transcript will be taken. We will send that on to you in due course and we would be grateful for any corrections or revisions that need to be made. The Minister has to leave at 3.30 pm, so I would be very grateful if both questions and answers could be kept crisp so that we have some chance of getting through what is quite a challenging set of questions.

I will start. Mr Cleverly, Lord Frost had a huge number of responsibilities and those have been divided up between yourself and two of your colleagues: the Foreign Secretary and the Minister for Brexit Opportunities. Could you describe to us how that division works?

James Cleverly: Thank you. The decision was made for the most part to bring the work that Lord Frost did into the FCDO and that helps to ensure that there is close co-ordination in the work that we do with the EU and its institutions and the Member States of the EU at Government-to-Government and capital city-to-capital city level. Rather than going into real granularity on this, I will draw the attention of the Committee to the Written Ministerial Statement that we put out on 24 February, which gives a comprehensive breakdown of the relationship.

As you said, probably the most straightforward way of thinking about it is that the Foreign Secretary has taken on the primary roles that Lord Frost had. She co-chairs the Withdrawal Agreement Joint Committee, and I and Michael Ellis at the Cabinet Office are her deputies. There is a very close working relationship between the FCDO and the Cabinet Office in our work on this. I think that it is the right thing to do to have our bilateral European relationships managed by basically the same group of Ministers who are doing our institution-to-institution relationships with the European Union.

I do not know whether you want me to go on to the responsibilities under the Northern Ireland Protocol or whether that is something that you might want to pick up elsewhere.

The Chair: I think that we will come on to that later in the evidence session. Thank you very much for that. You have not mentioned the Minister for Brexit Opportunities. How does he fit into the equation?

James Cleverly: He works closely with Michael Ellis at the Cabinet Office. His work lends itself more to domestically focused activities but, of course, when it comes to changes that we bring about through our departure from the European Union, it is important that we co-ordinate that so that any implications that those domestic-facing decisions may have on our relationship with the European Union and Member States is understood and that we discuss those and bottom those out before we implement any of them.

It is a very close working relationship. We have regular cross-Whitehall meetings, which are usually chaired either by Michael Ellis or me, where Foreign Ministers, Cabinet Office Ministers who have Brexit-related interests and other government departments at ministerial level get to meet and co-ordinate our response in these areas.

The Chair: To go back then to the Written Ministerial Statement of 24 February, that was an auspicious day with lots going on, but no changes have been made at all to the structure since then?

James Cleverly: No.

The Chair: On the Government’s website, looking at your long list of responsibilities, there is a leg that describes a responsibility, “Trade and Cooperation Agreement negotiations, including the Northern Ireland Protocol”. Of course, the Northern Ireland Protocol is part of the Withdrawal Agreement. Does that mean that you are responsible for a lot of Withdrawal Agreement things as well or just the Northern Ireland Protocol bit?

James Cleverly: I have focus, for obvious reasons, on the Northern Ireland Protocol element of that, but ultimately, I do have the remit right across the Withdrawal Agreement. There are other elements, some of which we may come on to later on in this session, where I have an involvement. Obviously, the division of labour is to a large extent defined by the areas where there is still either disagreement or resolution to be sought. There are areas that are functioning well and they do not require very much ministerial-level involvement. Ultimately, the responsibilities set out on the website cover all elements of it.

The Chair: We were due to see Lord Frost in January, in fact, and it has taken until June for us to see a senior Minister about what is a very complex situation. We have not split it between three committees; we are the whole committee, as it were. Could you confirm to the audience here what the agreement is about how often people will come and how often we will hear the news of what is going on in the complex set of negotiations?

James Cleverly: I do regret that it has taken a while for me to appear before the Committee. Some of that is just the bedding-in and me feeling confident that I can come here in front of the Committee with enough knowledge and experience of what has happened that I can add value, which has taken a little bit of time. As you say, my ministerial responsibilities cover the area that we are looking at today, plus others. I am afraid that I will not be able to commit to quite the regularity that Lord Frost committed to, but I understand—I have just been reminded—that a proposal for the rhythm with which I will appear before the Committee will be put forward to your committee clerks. I would envisage seeing you on a fairly consistent basis, but, as I say, the details of that are being shared or have been shared with your committee clerks.

Q2 The Chair: Thank you very much. Carrying on with the general strand, one set of commentators has suggested that because on the EU side it is a very limited number of people who are engaging, yet, as we have just heard, on the UK side there is quite a large number of Ministers there, inherently this is a weak structure on our part versus the EU, which has centralised everything in one or two people. How would you respond to that criticism?

James Cleverly: It is understandable that as we are the nation that is leaving the European Union we are the nation that is importing greater change. That change has implications across a number of government departments, some more than others, so it is right that within the UK Government we have regular meetings to ensure that all government departments that may be affected by any changes that we have initiated through our departure have a voice and an understanding about what those are. I think that that is a healthy way for government working—regular light-touch meetings where everyone gets sight of what might be happening in the near future and what decisions may affect their department is quite useful and prevents difficulties and problems brewing up.

The fact that the EU seeks to do it a different way is up to it. I wish it the best in the discharging of its duty. In my experience—and I caveat this by saying, of course, that I have not seen a different structure so I cannot really compare with what went before—it is a system that seems to be working well on our side.

The Chair: This is the final question from me. Your responsibilities include Europe, Russia, Iran, Northern Ireland for the Protocol bit, and the US. That is a pretty wide portfolio. Other commentators have suggested that that is so wide that it does not allow you to be able to do a good job on every aspect. Would you agree with that?

James Cleverly: I would very much disagree that I am not doing a good job, if you do not mind me saying.

One of the things that I have found is because—I would suggest with the exception of Iran—that is a list of countries many of whom are like-minded on some of the very big issues of the day, including Euro-Atlantic defence and security issues, economic issues, environment, human rights and so on, and because we are quite closely aligned, we find ourselves often talking about the same set of subjects. Being able to co-ordinate the UK’s voice across that group of like-minded partners on the interests that we share is very important. When I find myself in the United States of America, as I did quite recently, discussing many of the same issues that I discussed when I went over to Brussels, that for me reinforces the fact that this is quite a logical combination of international partners.

Again, in some of the later questions about our collective response to Russia’s invasion of Ukraine, perhaps we will be able to demonstrate that that has been a very good working relationship, which I have been able to see across Europe and across the Atlantic. The reason I kept Iran from my old Middle East-North Africa portfolio is because, unsurprisingly, of things such as the JCPOA, and because of our sanctions and security policy, the interests of the US, the UK, and our European partners, both EU and non-EU Member States, again require a fair degree of co-ordination.

As I say, I think that it is working well. I am perhaps not the best person to judge. I probably should not be marking my own homework, but I think that it is a logical combination of partner states for me to be dealing with as a Minister.

The Chair: Thank you very much. We will come to Lord Faulkner.

Q3 Lord Faulkner of Worcester: Thank you, Minister, for being with us today and we look forward to seeing you on future occasions. It is good that you will be coming at regular intervals.

Could you give us an account of what face-to-face negotiations at the political level and between principals have taken place with the EU during this current year, 2022 and when they took place? Have these all been about the Northern Ireland Protocol or have you talked about other things as well?

James Cleverly: My Lord, with your indulgence, I have always been reminded never to put lists into a speech because you will always miss stuff out. I fear that if I tried from memory to answer your question fully I would miss things out. I know that we have had a significant number, I think 25 or 26 meetings.[1] They happen at various levels: political and senior official. We engage intensively and regularly. There have been literally hundreds of hours of negotiations with the EU. I am happy to write to the Committee with a more comprehensive list, but across the Withdrawal Agreement, TCA, the Northern Ireland Protocol, Gibraltar and others, there have been dozens of meetings and hundreds of hours.

Lord Faulkner of Worcester: I am sure that we will be pleased to have the letter, Minister. Is it the case that before the phone call of 12 May and the Government’s decision to pursue a unilateral course, and the communication of that, the previous discussions between principals were as long ago as 21 February?

James Cleverly: That does not sound right. I was involved in the last couple of rounds of ministerial-level engagement. I think that we have had senior official engagement after that date. I think that the Foreign Secretary had meetings with Šefčovič after that date. I would urge the Committee not to only look at the full Joint Committee meetings because, of course, there have been ministerial-level and senior ministerial-level meetings between the Foreign Secretary and Vice-President Šefčovič. I lose track of the number of occasions. For example, at the celebration of Europe Day I was over at Europe House speaking with the EU ambassador to the Court of St James’s. We have spoken very regularly on these things.

As part of our “no surprises” policy we have signalled what we had intended to do and why we felt the need to do it on a number of occasions, at both UK-EU and Member State level. Ultimately, we want to maintain a good working relationship with the EU. We want a negotiated resolution to this and maintaining a dialogue is an incredibly important part of that.

Lord Faulkner of Worcester: You mentioned the connection between the Foreign Secretary and Vice-President Šefčovič. On 17 May, the Foreign Secretary issued an invitation to the vice-president to a meeting of the Withdrawal Agreement Joint Committee and, indeed, that that should happen as soon as possible. Can you bring us up to date on what progress there has been on that?

James Cleverly: We have not had a meeting as yet. We do not have a date set as yet. One of the points that we have made is that we enjoy a very good, professional working relationship with Vice-President Šefčovič and his team, but, as I think the Foreign Secretary has made clear in her statement and at other times, while we maintain a very good, cordial and professional relationship, the last rounds of negotiations really had not progressed.

The UK Government’s position is that Vice-President Šefčovič is limited in his ability to go any further because of his mandate, and our position is that the Protocol as it is currently running is not working. The most recent set of proposals that the Commission put forward would see a greater intensity of checks on east-west trade between GB and Northern Ireland. Bearing in mind that the current standstill position is not working, we say that that is not a credibly applicable set of proposals. We are saying that the Protocol is not working, and the Protocol needs to change. If the EU is saying that it cannot change the Protocol, in our mind that does rather limit what future negotiations can be.

The Foreign Secretary has made it clear that we are still very keen to engage with Vice-President Šefčovič. We want a negotiated resolution. We want the protocol to change and we do see a changed protocol as the way to resolve this issue.

Lord Faulkner of Worcester: Are you saying that the reason why the Protocol is not working is all the fault of the EU or is it because there are elements in it that the British Government did not foresee when they agreed to it?

James Cleverly: I would suggest that it is not possible to foresee every circumstance created by as fundamental a change as we had. That was envisaged in the wording of the Protocol. It was meant to be a living document. There are provisions that envisage disagreements and the need for change. I think that it is entirely reasonable to say that we have had a couple of years now of watching the Protocol in operation and it is not working, and that fact cannot be ignored and, therefore, changes need to be made.

I know that ultimately from the UK’s point of view we are looking for a pragmatic way through this. We want to have good trading relations with the EU. Obviously, we want to make sure that all parts of the UK are able to trade unhindered with all other parts of the UK. We do not think that those two things are mutually exclusive and that is why we have put forward the proposals that we have put forward.

I have just been reminded that the EU has accepted the fact that the Protocol at the moment is not working, so there is a universal acceptance that it is not working. What we need to address through negotiations is how we go about resolving that.

The Chair: Thank you. Lord Hannay wanted to come in here.

Lord Hannay of Chiswick: You said, very kindly, that you would provide us a list of the number of meetings and occasions you have had. When your colleagues were briefing me and other Members of this House, the figure given was 28, so perhaps you might stick to that. I do not think that we need a lot of encouragement to focus only on the Joint Committee for the simple reason that it has not met this year. Could you confirm that that is the case: it has not met this year?

Could you perhaps say something when you send the list in about what the content of these 28 contacts was? I was a little startled when you gave us an example of one of them, your attendance at Ambassador Almeida’s Europe Day reception. I was there, too, and it did not resemble anything like a business meeting that I have ever been to in my life.

James Cleverly: Let me make it clear that the figure—26, 27 or 28—is not including my attendance on Europe Day. The point I was making is that we have had a significant number of engagements. The Joint Committee last met in February, so it has met this year. In addition to those formal set piece meetings, we have regular engagement. I am sure that you all have been involved in international relations of one form or another. I would always suggest not to underestimate the amount of work that gets done in the quiet, discreet meetings at the fringes of other events. That is often where a lot of work gets done, which is then formalised in the set piece meetings. We have had regular and, I think, very significant levels of formal engagement, augmented and amplified by those perhaps less formal engagements that we have in diplomatic and foreign affairs circles.

The Chair: Thank you very much. We will move to Lord Jay.

Q4 Lord Jay of Ewelme: Welcome, Minister. Thank you once again for appearing before the Northern Ireland Protocol Sub-Committee recently, a committee that I chair. I have one or two further questions now about the Northern Ireland Protocol.

We talked when you appeared before the Sub-Committee about the draft legislation on the Protocol, which is now going through the Commons and which we look forward in due course to getting here. That is, of course, controversial. We have seen what the Taoiseach said yesterday and we have seen that I think 52 of the 90 Members of the Northern Ireland Assembly have expressed criticisms about it. My first question follows on from Lord Faulkner’s question. Am I right, therefore, in thinking that there is now, in effect, a stalemate or a standstill in the negotiations and nothing is happening? Or are the negotiations continuing on some aspects of it at some level?

James Cleverly: We have had official-level contact with the Commission and we have made it clear that we want to continue negotiating. Of course, what we want is those negotiations to be meaningful.

In the most recent rounds of negotiations that I was directly involved in, supporting the Foreign Secretary, we got tied up on the same issues in the meetings that I attended. Our view is that meetings that continue to discuss the same issues on which we do not have agreement in the same way are fine in terms of increasing the tally of meetings that you have but ultimately meetings should be about making progress. We seek to make progress through the formal meetings. Of course, the Prime Minister will have meetings at the various other multilateral fora that he attends: G7, NATO, and so on. For example, at the NATO summit next week he will be meeting a large number of his European counterparts.

We have made the point that we need to take some domestic action to address the issues, which have been well discussed, that we see in Northern Ireland. As the Prime Minister and the Foreign Secretary have made clear, we want to see the protocol get into a shape where it addresses the concerns of the Commission about Single Market integrity and addresses the UK Government’s concerns about community tensions in Northern Ireland and trade diversion and so on.

Q5 Lord Jay of Ewelme: Coming on to economic impact, the economic impact that the Protocol is now having on Northern Ireland is much debated, but there are some businesses that are clearly benefiting from the Protocol and there are others that are having difficulties with it. It is not obvious, at least to me, that a standoff in the negotiations will benefit the economy of Northern Ireland. One would assume that a standoff in negotiations and the uncertainty that that means will not be good for investment in Northern Ireland. Are you bothered about the potential economic impacts on Northern Ireland and on the people of Northern Ireland of not having an end in sight?

James Cleverly: Uncertainty is toxic to business; we know this. This is why we are genuinely very keen to get this resolved. As the Foreign Secretary has made clear and as I have made clear in a number of conversations that I have had around this, the last couple of rounds of negotiations were not making progress so the uncertainty was there. While there are definitely a number of businesses that have been quite vocal about the fact that they like how the Protocol is operating and it works for them, there have been a number of others, GB-based businesses, that were trading in Northern Ireland that have ceased to do so. That is a problem that we cannot ignore, particularly when those trade-related difficulties that some businesses are experiencing are clearly part of what are increasingly becoming community tensions and community problems. When all the political representatives of the unionist community—DUP, UUP, Northern Ireland Conservatives—are saying that the Protocol is not working for them, that is something that we cannot ignore.

We want to get this resolved. We want to give that certainty to businesses and, just as importantly, perhaps more importantly, to the communities in Northern Ireland themselves.

Lord Jay of Ewelme: Do you feel that the European Commission understands the problems within the unionist community?

James Cleverly: I think that it does, to an extent. It is not unsympathetic, but ultimately the people living in Northern Ireland, the political leaders in Northern Ireland, are the ones who are living through these circumstances. These are people who have lived through difficult times and quite understandably and quite rightly do not want to go back to those times of very intense community tensions and difficulties.

I think that there is an understanding. I am not necessarily sure that the scale of it is at the forefront of the Commission’s mind. It is our job to help it to understand why we feel so very strongly that the preservation of the gains in the Belfast/Good Friday agreement, the preservation of the north-south and the east-west trading relationship in Northern Ireland, and the concept of mutual consent are so very important to us. This is absolutely at the forefront of our minds and I completely understand that preservation of the integrity of the Single Market is very much at forefront of the Commission’s mind. That is understandable, and somehow we need to find a way of navigating so that we address our concerns and it addresses its concerns. We think that we have put forward credible proposals that could do that.

Lord Jay of Ewelme: Thank you. I have one final question. I think that pretty much everyone agrees, as you have said yourself, that the Protocol needs to be interpreted and applied flexibly. There are, of course, mechanisms within the Withdrawal Agreement, such as Article 168, and within the Protocol, such as Article 16, which allow for resolving disputes. The question I have that puzzles me slightly is that there does not seem to be a huge amount of difference between the EU and the Government on some issues such as red and green channels, so why did the Government not invoke these various procedures for resolving disputes that already exist within the agreements before resorting to legislation that many would claim—though I know that the Government would not claim—is difficult to reconcile with our international obligations?

James Cleverly: One of the points that we put forward is that the dispute mechanisms embedded within the Protocol only seek to resolve the issue through implementation. Our view is that there are some elements that are baked into the Protocol that are causing problems and that those things need to change. We want to do that through negotiation. We will always remain willing to negotiate but ultimately, we have looked at various ideas about the implementation of the Protocol and currently the EU’s proposals envisage a greater level of checks and bureaucracy than the current standstill position has. The point we made is the current standstill position is not working.

We want to make sure that everyone is confident that whatever changes happen—you talked about certainty—these things are codified and therefore will be resilient and future-proofed. That is why we are saying there need to be changes to the Protocol so that they are baked in and signed off, rather than just conversations and agreements about the application.

Lord Wood of Anfield: Can I just pick up on Lord Jay’s last question and clarify something you said? Were you saying that the Government decided not to invoke either Article 168 of the Withdrawal Agreement on arbitration or Article 16 of the protocol on permissible safeguard measures because the problems that you have with the Protocol are more fundamental than either of those provisions would allow for?

James Cleverly: Our challenge is that we have now had a couple of years of the implementation of the Protocol, and it is causing problems. There is widespread agreement that that is causing problems.

The proposals that have been put forward by the Commission thus far have all been about changes to the implementation. Our position is that those proposed changes will make it worse rather than better. The changes that we feel are needed are changes to the Protocol itself. That is why we have come forward this way.

Lord Wood of Anfield: I am slightly puzzled because after a year or so of talking about possibly revoking Article 16, the Government have now said there are more fundamental issues here that mean the protocol needs to be rewritten, as you have just said. But the Prime Minister has been saying now for a few weeks that these adjustments are purely trivial. How can you reconcile with that, that the Prime Minister sells the Protocol Bill as “trivial adjustments” and provides the justification for it but talks about how impossible the Protocol is to implement?

James Cleverly: Any watchmaker will tell you that small things can sometimes be very significant. We think that the proposals that we put forward are quite modest and that with some modest changes to the protocol we can resolve the issues in a sustainable way that means that Northern Ireland, Ireland, GB and the EU can all get from this what they need and want, which is seamless north-south trade, seamless east-west trade, protection of the Single Market and also, from the UK’s point of view, to make sure that we protect the hard-won gains in the Belfast/Good Friday agreement.

Q6 Lord Wood of Anfield: Any watchmaker would agree that parts of a watch are small but that does not mean that they are trivial; but that is another question.

Can I ask you a related issue about the commitment in the Withdrawal Agreement and Article 5, “to refrain from any measures which could jeopardise the attainment” of the Withdrawal Agreement? Is that being fulfilled by this Protocol Bill?

James Cleverly: I have just been reminded that one of the explicit goals of the Protocol is the protection of east-west trade between GB and Northern Ireland, which is the very issue that demonstrably is not working.

Lord Wood of Anfield: But what about the phrase “refrain from any measures that could jeopardise the attainment” of the Withdrawal Agreement? Given the reaction of the European Union, that is prima facie evidence that surely there is some jeopardy being instilled by this Protocol Bill.

James Cleverly: I suppose the challenge is that we are highlighting an explicit objective of the Protocol Bill, which is not being achieved. We are looking to get resolution. I completely understand the point that you are making on this. This is why we have said we are very keen to maintain negotiation because, as with all negotiations, ultimately either everyone is winning or nobody is winning, and we are very keen to get resolution on this so that the elements of the Protocol that the EU values are protected and the elements of the Protocol that the UK, both GB and Northern Ireland value, east-west trade being the most obvious one, are also protected. We will have to find something that synthesises both those positions.

Lord Wood of Anfield: I wonder what you say when you talk to DUP representatives, who, after all, did not vote for this Withdrawal Agreement precisely because of the thing that you are now citing as the problem with the protocol, that it has introduced a commercial border in the Irish Sea. The European Commission also warned that that would have to be the consequence of it as well and so did lots of other politicians across parties. What is your line when you talk to the DUP, about why you now agree with what it said in advance of the withdrawal treaty being passed?

James Cleverly: The challenges have been around implementation. I know there is disagreement about the exact numbers but I think everyone would agree that there is an order of magnitude difference between the scale of the external EU border trade when it comes to GB, Northern Ireland and then into Ireland, compared with the volume of checks. There is a disproportionality there. That is obvious. It is causing problems.

It is always difficult to prove an alternative reality, that it could have been implemented in a way that did all those things, but that is not what has happened. We have to deal with the world as it is. The way things are at the moment is that east-west trade is being detrimentally affected. That is one of the explicit objectives of the Protocol. That therefore needs to be fixed. We are putting forward well thought-through, pragmatic and, we think, realistic proposals that could address the concerns of the Commission with regard to the integrity of the Single Market. We also think they address the current problems in the facilitation of east-west trade between GB and Northern Ireland.

The Chair: We come to Lord Tugendhat, who I think might have had a question, as well as his own question, on this earlier set.

Q7 Lord Tugendhat: Can I ask my supplementary question first? I listened very carefully to what the Minister said, in the very moderate tone he has adopted, in talking about the difficulties of the protocol. I wonder if he could tell me why he thinks it is that the Northern Ireland economy appears to be performing better than other parts of the UK apart from London. Is the Protocol contributing to that outperformance?

James Cleverly: There are a number of businesses that are very supportive of the Protocol. They feel that the Protocol has helped them. There are a number of businesses which feel that the Protocol is really hurting them, and we want to make sure that all businesses are comfortable with the arrangements that have been made. I am not suggesting that this was implicit or explicit in your question, but I do not think we can say, “Well, some businesses are happy with it and the rest of you can just dry your eyes and kiss your business goodbye”. That would be completely inappropriate.

The reasons for why the Northern Ireland economy is doing well are not yet clear. I do not particularly want to speculate without having a look at the figures. One of the elements that we know to be true is that the public sector in Northern Ireland proportionately is larger than in many other parts of the UK. Obviously, that is perhaps more resilient in some of the economic shocks that we are seeing globally and across the UK. I cannot, in all good conscience, look you in the eye and say that is definitely the reason but I think it could be a contributory factor.

I said at the start of my answer that we want to make sure that all businesses that want to transact in Northern Ireland or with Northern Ireland are able to do so. At the moment that is not the case. That is very significantly hampering those businesses transacting between GB and Northern Ireland. That is why we feel this has to be addressed.

The Chair: Lord Tugendhat, before we come to your substantive question, could I go to Lord Lamont, who had a supplementary on the previous question?

Lord Lamont of Lerwick: I wanted to drop back a little to the presentation of the Government’s legislation, which I support, but this legislation will face great opposition in the Lords and possibly also in the Commons. There is scepticism about whether the Government are not being a bit too inflexible. The EU accuses the UK of being inflexible, not negotiating; the UK accuses the EU of not negotiating. You have pointed out that the protocol is not working but, at the same time, the EU maintains that it has put forward proposals that would dramatically lower the number of checks that are taking place or will take place when the protocol is fully implemented.

Will you not have to go into much more detail to demonstrate to Parliament and public opinion that the lack of flexibilities is on the other side, not on our own side?

James Cleverly: We put forward our problems and solutions document at the point where the Foreign Secretary made the announcement about the Bill. It is important to recognise that the flexibility the Commission has shown is from its original starting point. Its original starting point was tougher than the proposals it put forward most recently, but the proposals it put forward most recently still envisage a more intense regulatory regime than the current standstill position. While it was better than its opening offer, it is worse than the status quo and the status quo is not working. The point we made is that anything that envisages a tougher regime than the one that is currently deterring east-west trade cannot logically be seen as the better solution than the status quo. That is why we are saying that if Maroš Šefčovič is limited by his mandate in how much further he can go, his mandate has to change. In any negotiation there has to be an area of crossover and at the moment there is not. We need a little bit of give. We do not think, as I said in response to Lord Wood, that necessarily has to be huge but it does have to be there.

The Chair: We need to make some progress and we are slightly behind time. I would appeal to both questioners and the Minister to try to keep answers very crisp. We come back to Lord Tugendhat.

Q8 Lord Tugendhat: Now for my substantive question: the UK has always made it clear, and quite rightly so, that it wants to have a harmonious relationship with the EU but there are some outstanding problems. To what extent does the Minister feel that the difficulties facing the parties regarding the operation of the Protocol are hindering the operation of wider UK-EU co-operation? I am thinking here particularly of the Horizon Europe programme. Could the Minister answer in relation to Horizon and perhaps go a little bit wider as well?

James Cleverly: The nature of the co-operation presents a bit of a mixed picture. The Horizon programme is an important and high-profile example on which we have not been able to make the kind of progress we would like because of the current difficulties in resolving the Northern Ireland Protocol position. That is a shame. It would be better if these things were compartmentalised because ultimately we want to make sure that we make decisions and take actions that are in our mutual benefit. There is much to be gained by continuing to work with the European Union on a range of issues. That is the more negative bit of my answer.

On the more positive bit of the answer, there have been a number of examples—most notably in our collective response to Russia’s invasion of Ukraine—where we have worked very well both with Member States and at an institutional level. Obviously, we want to make the most of those areas where we are working well and resolve those areas where, at the moment, there is an impasse.

There are areas where we would prefer to have been able to make greater progress, Horizon being one of them, but I think is important to understand that it is not a completely bleak picture

Lord Tugendhat: Are there any other specific areas of UK-EU co-operation where the Government are disappointed by lack of progress?

James Cleverly: The MoU on financial services has not progressed. That, again, I think is an area that need not be interwoven with the situation in Northern Ireland and would be to our mutual benefit. That is one that springs to mind. There may be others.

Lord Tugendhat: I appreciate that you cannot bring everything to mind immediately but would it be possible for you to write to the Committee specifying others?

James Cleverly: I will ensure that that happens.

Lord Tugendhat: If there are others. Okay, thank you very much.

Q9 Baroness Scott of Needham Market: You will be aware that beyond the UK there have been many loud voices suggesting that the Bill does breach international law. I wonder whether it troubles the Government that among some of those who should be our closest allies there is a view that the Government are breaking international law, and therefore the position that we have traditionally held as a country which upholds international agreements and so on has been compromised.

James Cleverly: The Government’s position is that we are completely confident that we are in accordance with international law. The paper on our legal position was put into the public domain and it sets out our rationale for why we are confident of that position. I am conscious that I will probably insult a number of people in this place, because there are a number of lawyers in the House of Lords, but my observation is that lawyers often disagree with each other. The UK Government are confident that this is in accordance with international law.

Ultimately, as I said in response to previous answers, we would be very happy if this was resolved through those amendments to the Protocol but if that is not possible, we need to take action because of the issues that have been highlighted in the answers I gave earlier.

Baroness Scott of Needham Market: Your responsibilities include North America, and I am sure you will have heard in your recent visit that a lot of these concerns are coming from senior figures within the United States. It is a country with which we have always enjoyed close relations and one that we seek to have a trade agreement with. Regardless of what the Government believe about this law, do you not see it as being problematic if there is a perception that the UK is breaking international law?

James Cleverly: I understand the point you make about the perception but, as a Government, we have a duty to resolve this. There is a part of our nation that is telling us that it is experiencing difficulties trading with another part of the same nation. Any Government would understand that that is not a circumstance that a Government can ignore.

Ultimately, we value very highly the relationship we have with the United States of America, and we have found ourselves, unsurprisingly, in very close alignment in our response to Russia’s invasion of Ukraine, for example, as well to as a number of other issues. I have no doubt that we will maintain an excellent working relationship with the United States and, I hope and expect, with our European friends and neighbours, notwithstanding the fact that we have to take action on something that is about the integrity of our own country. The job of diplomacy and international politics is resolving disagreements. Where there are no disagreements, you do not need diplomats. Diplomats deal with disagreements and international relations are about resolving difficulties and disagreements. That is what we endeavour to do.

Lord Hannay of Chiswick: I hasten to say that I am not a lawyer. In the Government’s document giving the legal justification for action in this Bill, it is stated that what is called the doctrine of necessity overrides our international legal obligations and commitments. Does that apply to all our international obligations and commitments? For example, does the doctrine of necessity override Article 5 of the NATO treaty?

James Cleverly: I think that that is a leap too far, if you do not mind me saying.

Lord Hannay of Chiswick: I am very happy to hear you say it; you are being selective.

James Cleverly: Our commitment to NATO and Article 5 is unwavering. When it comes to the application of these things, of course you need to judge each one on a case-by-case basis. This situation is unique and I do not think it could be read across to other international agreements, particularly something like that one.

Lord Liddle: You mentioned the importance of diplomacy. I presume you have been trying to persuade our allies and partners that your actions in Northern Ireland are legal. I would like to be told if, for instance, within the EU, the people to whom we are closest—the Baltic states, the Nordics and the Netherlands—are saying at European level to the Commission that they disagree with the Commission’s response to the Government’s proposals on Northern Ireland?

James Cleverly: I have had a number of conversations at Member State level that mirror the conversations that we have had with the European Commission explaining why we feel so strongly about the Belfast/Good Friday agreement and why we think it is so important to maintain those community relations and given examples of where east-west trade between GB and Northern Ireland has been curtailed.

I was not expecting Member State capitals to go, “My gosh, James, that is a compelling argument. I will now ring up Brussels and tell them to get a grip and change their position”. But they do listen. They listen intently. They genuinely seek to understand. Unsurprisingly, just as we would if the tables were turned, they tend to play their cards relatively close to their chests.

Universally what we have not seen is a breakdown in relationships, at either the Commission level or the Member State level. That is good. That gives us something to work with. I think they understand that we feel very strongly about the issues that we have raised and that they understand that we want a resolution that works for Northern Ireland and for the UK more broadly, works for Ireland, and also for the EU more broadly. They take that desire in good faith, and that gives us something to work with.

Baroness Couttie: Building on what Lord Liddle was saying, I do get a sense that the UK has not got its PR right in terms of persuading both the domestic and the international community of our argument, and I think that is extremely damaging both for the current Government in the UK and for the UK internationally. It comes across as if we are behaving incredibly difficultly about the Northern Ireland Protocol and the Europeans are trying to be reasonable. That is the impression that one gets from the domestic media coverage, let alone the international coverage on the subject, and again that we are breaking international law.

What I would like to understand is more broadly than the discussions that you have been having with government officials and members of the government, what is the UK’s PR campaign to persuade people of our point of view? I just feel that we are losing the argument more broadly.

James Cleverly: Anybody who has had any dealings that involved Northern Ireland politics or international trade, or the combination of the two, will have an understanding of the sensitivity and complexity of these issues. I have been a communicator, both in the commercial world prior to politics and also in political communication, and the watchwords are always “Keep it simple”, but the bottom line is that this is not simple. It is complicated and there is a huge amount of sensitivity that we need, quite rightly, to respect, which makes communicating our position a little bit harder. But I will take the criticism in the spirit that it is meant.

I would make the case, however, that this time last year, when we were saying this is a problem, the universal response was, “No, this is not a problem”. When we have situations where Tony Blair—who I respect but often disagree with, particularly with regard to our relationship with the EU—is saying there is a problem I think we can say to ourselves that we have communicated at least part of the message effectively, which is something needs to be resolved.

What we now need to do—and I take your points in the spirit that they are given—is explain more fully why our proposals are reasonable and pragmatic, and why we believe they would work. But the argument that there is no problem and all the British Government need to do is get on with it, that argument has now been put to bed, when there is nearly universal agreement that the protocol is not working.

Q10 Viscount Trenchard: On 24 March, the European Commission published its first report on the implementation and application of the TCA, covering the 12 months of 2021. Given that this Committee is charged with responsibility for overseeing UK-EU relations, we were a little surprised that this report was not deposited in Parliament and formally submitted for scrutiny to our Committee. Could you comment on that? Can you also tell us whether the Government intend to produce their own regular reports on the operation of the TCA?

James Cleverly: Thank you for highlighting this. Actually, the conversations we have had with the Committee about the scrutiny arrangements will address this and give clarity as to which documents will be deposited for the scrutiny of the committee as well as the regularity of ministerial attendance, for example. I do take your point about having the appropriate documents made available to give you the opportunity for scrutiny.

As for annual reports, my understanding is that that is a standard practice for the EU for its trade agreements. Obviously we are still at relatively early days in our independent trade policy and trade agreements. Of course we will be looking at the best way to make sure that those can be effectively scrutinised by both Houses.

Viscount Trenchard: Thank you, Minister. Can I also ask you to comment on what is stated in this report, which is that the Commission promises to continue monitoring UK regulatory reform in areas covered by the TCA, because it is of vital importance to ensure that it does not conflict with the TCA provisions, and that EU businesses are not put at a competitive disadvantage? You have said that you are not quite sure yet how the Government will monitor trade agreements from their point of view, but do they intend to do something similar with regard to changes in UK law, which might presumably put UK businesses at a competitive disadvantage? If so, will you please share with the Committee your plan explaining how the Government will carry out this monitoring?

James Cleverly: Olaf’s team basically does that. We replicate that functionality through his team. I do not know if he wants to expand on that. We do that within the department. I think the Committee’s scrutiny work will form part of our commitment to transparency with regard to the scrutiny of the House, but the assessment of implications is something that Olaf’s team already does.

The Chair: Thank you. That is very helpful.

Q11 Lord Faulkner of Worcester: Is the institutional structure created by the TCA and the Withdrawal Agreement for managing the relations between the UK and EU working as you envisage? If not, in what way is it not working?

James Cleverly: We think it is working. Obviously there are changes in the structures. As I said, this is a by-product of us leaving the European Union, but for the most part the TCA and the Withdrawal Agreement are working well. All the Specialised Committees under both the agreements have now met I think at least once each, and they will all meet again over the forthcoming year.

Obviously these are new structures and there will always be the opportunities to learn, adjust and improve, but any improvement that we make will be from a pretty good starting point.

Lord Faulkner of Worcester: What sort of resource have the Government committed to this new structure?

James Cleverly: I am reminded, which is a ministerial way of saying I have just been told by one of my officials, that we have over 100 representatives at UKMis, and the honourable Member for Stone led a delegation to there. The feedback he had was that he felt that they were working well. I suspect that he would be regarded as a pretty tough marker. He passed on the feeling that the new structure, UKMis, was working well. In Olaf’s team, again we have a similar number of people—just over 100 people. That is the human resource support that we have put to those.

Lord Faulkner of Worcester: To be clear, how much of a structure is based in London?

James Cleverly: About 100 over here and 100 over at UKMis.

Lord Faulkner of Worcester: Okay, thank you.

The Chair: We now come to the very patient Lord Lamont.

Q12 Lord Lamont of Lerwick: Thank you very much. I am not impatient at all. In its report on the TCA the Select Committee regretted the omission of regular summit-level meetings between the parties. Lord Frost was more sceptical about this and said that he thought that these meetings should only happen naturally and organically as part of the developing relationship. How would you describe the quality of the current relationship between the UK and the EU? Secondly, what, if any, are the Government’s plans for regular ministerial and Heads of Government-level of dialogue with the EU27 and the Commission?

James Cleverly: I think we have a good level of ministerial engagement with the EU. I will draw the distinction between the EU and the Member States of the EU. This is specifically about the institutional relationship. The Prime Minister met President von der Leyen and President Michel. He sees them in a number of fora, including the G7, and he will see them, I have no doubt, at Madrid next week. We also meet at other levels. When I attended the Development Ministers’ meeting in Berlin a few weeks ago, for example, I met not just the member states of the G7 but the delegation from the Commission. There is a regular set of engagements that are not necessarily branded as UK-EU engagements, but they are engagements at ministerial level. In addition, we have the Joint Committee meetings.

So I would say that we have a good number of ministerial-level meetings between the UK and the EU. As I say, amplifying those are the usual bilateral engagements we have with Member States.

Lord Lamont of Lerwick: Obviously we have only very recently left the EU. The dust has not yet settled and there are a few frictions. It would not be appropriate on either side to institutionalise this or have formal structures at this stage, but can you see a point down the line where our relationship with the EU might be more formalised, more structured, be given more to regular meetings on this, and diarised for several years ahead?

James Cleverly: I am quite Bauhaus in these things in that I think form follows function. The EU, by the nature of its multi-member existence, needs to formalise these things. The EU likes having these fairly well-established and quite significant number of Committees and structure, and that kind of stuff.

We do not envisage the need for that tightness of structure in the UK-EU relationship. We do not tend to have things like that with many of our international partners. There are a number of occasions when we have strategic dialogues bilaterally, but this very structured type of relationship is not necessarily the way the UK normally does its international relations. As I say, form follows function, and I do not envisage something like that being necessary, because there are a number of opportunities where the Prime Minister, the Foreign Secretary or other Ministers with international focus get to meet their EU counterparts. It seems to be working well, and all my instincts say that if it ain’t broke, don’t fix it.

Lord Lamont of Lerwick: Thank you for that Bauhaus reply.

The Chair: I described Lord Lamont as very patient. I hope that did not come across wrong.

I have a follow-up question. A year or so ago, an agreement was signed with Germany, under which there will be joint Cabinet meetings and meetings of Permanent Under-Secretaries. Quite a lot of new structure between the UK and Germany was put in place. Are you saying that it would not be appropriate to put similar formal structures in place with the EU?

James Cleverly: I would not want to say that that could not and would never happen, but at the moment the opportunities for engagement at senior and ministerial level seem to be working very well. One thing that we want to focus on at the moment is making sure that things like the committees as envisaged by the TCA work effectively. Speculating about other additional structures while a number of the new structures are still bedding in and evolving would be getting slightly ahead of ourselves.

Q13 Lord Hannay of Chiswick: I wonder if we could turn now to something quite different, which is the difficulties that have arisen since Brexit over youth mobility and school visits on the one hand, and the movement of performing artists and performers generally on the other.

In March this year, in a speech he gave in Zurich, Lord Frost said he believed that the Government had been “too purist” in their approach to these issues, and suggested that there should be an attempt to “try harder”. Would the Government be prepared to look at this again? I am not suggesting that we look at the solution we put forward in the TCA negotiations, which was rejected by the EU, nor at the solution they proposed, which was rejected by us. I am not suggesting either of those two, because I think that would be to continue the dialogue with the deaf, which has been characterising this subject for quite a long time. We have had a lot of exchanges of correspondence.

Could you just look at it and perhaps, using some of the machinery of the TCA, find a way to resolve these issues—school visits and performing artists—which are an absolutely crucial part of our common cultural heritage with the member states of the EU? It is nothing to do with the EU as such; it is something much broader and deeper than that.

Perhaps you could think about it and see whether some encouragement could be given to find new ways, not the way the EU tried in the negotiations, and not the way we tried and I know succeeded with the EEA, but some other way of facilitating both of these really important matters. I think the feeling, from all the evidence we have taken, is that proceeding by purely bilateral route, although that has some benefits, and the Government have negotiated quite a large number of these, is not sufficient because it does not address all the complexities. What is needed is a joined-up approach. Could you take that away and think a little about it? It would be of great value if you would.

James Cleverly: You make a fair point on the desirability of a mutually pragmatic approach, particularly with regard to youth mobility. That is one of those areas that carries huge amounts of benefit and very few disbenefits. As you say, proposals were put forward and they did not quite work. That certainly should not be taken as an unwillingness to revisit it. It is something we can look at. We have put mobility schemes in place in some areas, as you say. We want to ensure that things like our Turing scheme are successful. Our relationship with Europe and European countries is incredibly important to us, but although we have always been a European country, we have always been a global country as well.

Maybe I am slightly more sensitive to this because I have African heritage. There are a huge number of young people from that continent who would love to have the opportunity of something similar to the Erasmus scheme, and it is really important that we look at that, particularly in other places where we have very strong cultural ties. I am cognisant of the fact that CHOGM is starting this week, and we have very strong ties with the Commonwealth.

My point is that we recognise this. I do not have a huge amount of respect for Lord Frost. I do not agree that we were being too purist—I think we have always come at this from a pragmatic starting point—but I think your broader point about the desirability of evolving and seeking opportunities for youth engagement and travel is important.

We have been doing a lot of work visa free travel for artists and creatives and the issue is almost resolved across the board. I think there are now only a very few member states where we have not managed to get visa-free travel in place, but we continue to negotiate with them about that, because again we are very conscious, from the UK’s point of view, that our cultural offer is one of our great strengths. Who would not want to share Stormzy, and others, with everyone across the European Union?

Lord Hannay of Chiswick: Thank you both for the tone and the content of that response. We look forward to hearing the outcome of your reflections. I think we are singing from the same hymn book on this particular issue, not just on school exchanges but on the performing artists, who will be helped by what you are doing bilaterally, but not sufficiently. If you look at it, you will see that there are aspects that fall to the EU as such, and one needs to fit the two together. I do not want to take the matter further today; I just want to thank you for your answer.

James Cleverly: Singing from the same hymn sheet or, indeed, spitting the same lyrics, as I think my boys would describe it.

The Chair: And Stormzy as well, no doubt.

Q14 Viscount Trenchard: I totally agree about singing about the same lyrics in different languages. My son runs a music festival and he tells me that although it is true, as you say, that there are many agreements that work reasonably well, not all the bilateral agreements that have been entered into are as generous as others. It is still very difficult and very expensive for artists to go on a tour to two or three different Member States, which is what they need to do. But enough about that.

Your paper on the benefits of Brexit stated, “Our new independent sanctions policy means we are more agile when deciding how and where to use sanctions”, but the Foreign Secretary told the Commons recently that House of Lords amendments to the Sanctions and Anti-Money Laundering Act had made it harder to get sanctions agreed. These two statements would appear to conflict with each other. Which of them is correct?

James Cleverly: Being a politician, I will give you a politician’s answer. They are both in their own ways correct. For example, in response to Russia’s invasion of Ukraine, we were able to move much more quickly than our friends and partners in the European Union on some of the financial services sanctions that we put in place and on some other areas like that. The EU sanctions were able to move more quickly on some individual designations.

My point, however, is that once the difficulties of imposing sanctions at the speed we wanted to impose them was recognised, we were able to get legislation through the House very quickly with cross-party support, which we recognise. Having remedied the Sanctions and Anti-Money Laundering Act, we were then able to apply sanctions very quickly because we did not need to negotiate with anybody else. So although some specific elements of the Act needed some changes, we were able to enact those changes very quickly and then use that new power very quickly because we are an independent state.

We saw from the most recent rounds of negotiations that the EU had to take a wide range of views into consideration. Some countries are very heavily dependent on Russian hydrocarbons; other EU member states are almost completely independent of Russian hydrocarbons. Quite rightly—this is an observation not a criticism—the EU has to ensure that all their Member States are happy with the sanctions regime they put in place. That takes time. The UK, on the other hand, was able to move at speed on this, and we have put forward very regular sanctions, almost like a drum beat of sanctions, that we know are really pinching, because we know that when Vladimir Putin describes Boris Johnson as someone who hates him or hates Russia—I can assure the world that the Prime Minister does not hate Russians, but he does hate what Vladimir Putin is doing to Russians and Ukrainians—he singles out the UK, because we know that particularly our financial services sanctions really hurt Russia. We were able to move very quickly on those because we are independent of the EU.

Q15 Lord Liddle: Relating to sanctions questions and other questions and Russia’s attack on Ukraine, I made a speech in the Lords last week on this and I praised the Government for quite a lot of their responses. But what I find puzzling about the Foreign Secretary is that she is always praising her co-operation with G7 allies and with NATO but seems very reluctant to acknowledge in any public sense the importance of co-operation with the European Union and its key Member States. What is your response to that?

James Cleverly: I do not think I agree with your assessment of it. If that is how you are perceiving it, that is worth noting on our part. The Foreign Secretary tweeted about the successful interaction with the recent FAC (Foreign Affairs Council) in February/March. We do enjoy good co-operation with the EU. We keep referring back to Russia’s invasion of Ukraine. That is not the only area, but of course it is the dominant one at the moment. We find ourselves pulling very much in the same direction on that. So if the perception is that we underplay our co-operation with the EU, I will take that on board and look at that. There are a number of areas—I am trying to find different examples, not just Ukraine examples—such as climate change, where we are working well, but I will take your point on board.

Lord Liddle: Might I ask you to follow up on that? To the extent that European co-operation is acknowledged in the Ukraine area, it is on the sanctions question, where obviously close co-operation is essential if sanctions are to be effective, but there are also other areas in defeating the Russians or pushing the Russians back, or however you want to put it, where have to co-operate, such as on our gas supply. We are at the end of the line of the European pipelines, and Putin is clearly weaponising famine as a means of putting pressure on Europe. We will have floods of refugees coming from countries where there is appalling famine, and surely we have to co-operate with the European Union on those questions.

Are the Government committed to this broader agenda, which arises specifically from the very fundamental threat and change to the world order that Ukraine represents?

James Cleverly: You make very strong points on a number of issues. You are absolutely right about things like energy transition. That will require us to work closely with the EU. We already work closely with the EU on this, as we do with regard to your other point about the effective blackmailing of the global south and some of the least-developed countries in the world by Putin using the blockade of Ukrainian grain exports to try to create leverage, and I have no doubt we will continue to do so.

More broadly, and this goes to your opening point about tone and communication, it is very important that when we speak for example about the use of hunger as political leverage by Vladimir Putin, we make sure that what we are saying and how we say it is delivered in close co-ordination with the EU, the US and other partners. We are working closely together. If that is not coming across, I will take that point to heart and endeavour to make sure that those areas of good co-operation with the EU are highlighted.

Q16 Lord Lamont of Lerwick: Does the co-operation and co-ordination on the sanctions include a regular critical review of the effectiveness of those sanctions? I think it is generally agreed that the financial sanctions have a big impact on Russia, but I have read about disagreement on the effect of oil sanctions on Russia and a couple of accounts that argued that the short-term effect of the oil sanctions on Russia by the West has been to drive up the price of oil. Although Russia is selling lower volumes, the revenue is actually as much or greater than it was before. Is this something that you will be looking at regularly?

James Cleverly: Yes, we ensure that we do that audit function with regard to the effectiveness of the implementation and to attempts to circumvent sanctions. We do that with the European Union. We also do that with the United States of America and Japan, for example. That is a function that we look at.

Lord Lamont of Lerwick: It is about the effectiveness as well as the implementation.

James Cleverly: Yes, it is about the effectiveness. The sanctions have an impact on Russia and Russian behaviour, as you say, with regard to markets for their hydrocarbons, for example. You talk about hydrocarbon prices, oil prices, gas prices; it is that assessment that has led us, as the Foreign Secretary said at the Dispatch Box in Foreign Office Questions, to speak regularly with our partners in the Gulf about production levels to try to offset those oil and gas price increases, which not only impact the cost of living here domestically but of course impact on Russia’s own economic fortunes.

We want to make sure as far as possible we look after the lives and livelihoods of people here in the UK and our friends and partners in the rest of the world, while also effectively putting pressure on the Kremlin.

Lord Hannay of Chiswick: What are we saying to Prime Minister Modi about the massive increase in Indian imports of Russian oil?

James Cleverly: The point we make right across the board is that Russia is not a friend. Russia has a long-standing relationship with India. We enjoy a very good working relationship with India. We will encourage all countries to recognise that the actions that Putin has taken in his unprovoked illegal attack on Ukraine should demonstrate to them that Russia is not a credible or honourable partner either now or for the future. That is a conversation we will have right across the globe.

The Chair: Thank you very much. We said we would finish in time for you to get to your next meeting and we have. I am grateful to my colleagues for keeping everything crisp.

You promised three things, Minister. The first was a list of meetings to Lord Faulkner, expanded a bit to some idea of the context and content by Lord Hannay. The second was a list of the areas where the Government were disappointed by the lack of progress, as promised to Lord Tugendhat. The third was the deposit of the EU report on the operation of the Trade and Co-operation Agreement. I am grateful for those three promises, and if they could be sent on in due course I will be grateful again.

We all thank you for being so frank and fluent, and we look forward to seeing you in due course.

[1] Note by witness: meetings between the Foreign Secretary or Lord Frost, and Vice-President Šefčovič.