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Main power in connection with other separation issues

European Union (Withdrawal Agreement) Bill – in the House of Commons at 12:39 pm on 8th January 2020.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs) 12:39 pm, 8th January 2020

I beg to move amendment 38, page 20, line 10, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment 39, page 20, line 18, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 47, page 20, leave out lines 25 and 26.

Removing this subsection prevents Ministers from using secondary legislation to amend primary legislation in order to implement the withdrawal agreement.

Clause 18 stand part.

Amendment 40, in clause 19, page 21, line 15, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 41, page 21, line 25, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 42, page 21, line 34, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 43, page 21, line 44, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Clause 19 stand part.

Amendment 24, in clause 20, page 24, line 2, at end insert—

“(1A) The payment from the Consolidated Fund or the National Loans Fund to the EU or an EU entity of each sum under section (1) which results from the imposition of any penalty shall be subject to approval by resolution of the House of Commons.”

This amendment is intended to require parliamentary approval for the payment of any fines or penalty under the withdrawal agreement.

Clause 20 stand part.

Amendment 44, in clause 21, page 24, line 37, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 1, page 25, leave out lines 1 and 2 and insert—

“(2) A Minister of the Crown must, on or before 30 June 2020, publish a comprehensive economic impact assessment of the effect of the Ireland/Northern Ireland Protocol and regulations made under subsection (1) on—

(a) the UK’s Internal Market and the access of Northern Ireland goods to Great Britain and Great British goods to Northern Ireland;

(b) the Northern Ireland economy, including levels of imports and exports;

(c) fiscal and regulatory compliance of goods travelling from NI to GB and from GB to NI; and

(d) barriers to entry for third-country goods entering NI and GB from Ireland, the rest of the EU and third countries.

(2A) The Secretary of State must make arrangements for—

(a) a copy of each report published under subsection (2) to be laid before each House of Parliament, and conveyed to the Presiding Officer of each devolved legislature, by the end of the day on which it is published;

(b) a motion in neutral terms, to the effect that the House of Commons has considered the report, to be moved in the House of Commons by a Minister of the Crown; and

(c) a motion for the House of Lords to take note of the report to be tabled in the House of Lords and moved by a Minister of the Crown.

(2B) The motions required under subsections (2A)(b) and (c) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament.

(2C) The Secretary of State shall make a further report under subsection (2) on or before 31 October 2020 and at least every 12 months thereafter.”

This amendment would require the Government to deliver full transparency on the implications of the Ireland/Northern Ireland Protocol including barriers to trade between Great Britain and Northern Ireland.

Amendment 48, page 25, line 2, leave out “(including modifying this Act).”

This amendment would prevent Ministers making regulations under this section to modify the European Union (Withdrawal) Act 2018.

Amendment 33, page 25, line 2, at end insert “except repealing section 7A.”

This amendment would remove the uncertainty as to whether Ministers could amend or repeal the proposed new section 7A of the European Union (Withdrawal) Act 2018.

Amendment 50, page 25, line 3, leave out “may” and insert “must”.

In conjunction with Amendment 12, this would require the Government to ensure unfettered access for Northern Ireland goods to the GB market when it makes regulations implementing the Protocol.

Amendment 12, page 25, line 4, after first “the” insert “unfettered”.

This amendment would require regulations to facilitate unfettered access of qualifying Northern Ireland goods to the market within Great Britain.

Amendment 13, page 25, line 16, at end insert—

“(6A) Regulations under subsection (1) must include provision to prevent any direct or indirect commercial discrimination that may arise to the detriment of businesses (including farms) in Northern Ireland as a result of the Ireland/Northern Ireland Protocol.”

This amendment is intended to prevent direct or indirect commercial discrimination against Northern Ireland products.

Amendment 14, page 25, line 16, at end insert—

“(6B) Regulations under subsection (1) must include provision to prevent non-tariff barriers being imposed in Great Britain to exclude Northern Ireland products except to the extent strictly required by the Ireland/Northern Ireland Protocol as long as it remains in force.”

This amendment is intended to prevent a ‘not available in / do not ship to NI’ approach where no sound competitive reasoning is supplied, in order to protect Northern Ireland consumers and businesses.

Amendment 15, page 25, line 16, at end insert—

“(6C) Regulations under subsection (1) must include provision to prevent the exclusion of Northern Ireland produce or products from British marketing campaigns or assurance, trade and labelling schemes.”

This amendment is intended to prevent Northern Ireland products being excluded from ‘Red Tractor’ or ‘Buy British’ marketing schemes.

Amendment 10, page 25, line 27, at end insert—

“(8) But regulations under this section may not—

(a) impose or increase taxation or fees,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) establish a public authority,

(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or

(f) amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”

This amendment would apply the usual restrictions on Ministers’ delegated power to make regulations under the Government’s proposed new section 8C of the European Union (Withdrawal) Act 2018.

Clause 21 stand part.

Amendment 45, in clause 22, page 25, line 37, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 46, page 26, line 3, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 51, in clause 22, page 26, line 13, leave out “may” and insert “must”.

In conjunction with Amendment 16, this would require devolved authorities to ensure unfettered access for Northern Ireland goods to the GB market when making regulations implementing the Protocol.

Amendment 16, page 26, line 14, after first “the” insert “unfettered”.

This amendment would require regulations to facilitate unfettered access of qualifying Northern Ireland goods to the market within Great Britain.

Amendment 17, page 26, line 25, at end insert—

“(6A) Regulations under sub-paragraph (1) must include provision to prevent any direct or indirect commercial discrimination that may arise to the detriment of businesses (including farms) in Northern Ireland as a result of the Ireland/Northern Ireland Protocol.”

This amendment is intended to prevent direct or indirect commercial discrimination against Northern Ireland products.

Amendment 18, page 26, line 25, at end insert—

“(6B) Regulations under sub-paragraph (1) must include provision to prevent non-tariff barriers being imposed in Great Britain to exclude Northern Ireland products except to the extent strictly required by the Ireland/Northern Ireland Protocol as long as it remains in force.”

This amendment is intended to prevent a ‘not available in / do not ship to NI’ approach where no sound competitive reasoning is supplied, in order to protect Northern Ireland consumers and businesses.

Amendment 19, page 26, line 25, at end insert—

“(6C) Regulations under sub-paragraph (1) must include provision to prevent the exclusion of Northern Ireland produce or products from British marketing campaigns or assurance, trade and labelling schemes.”

This amendment is intended to prevent Northern Ireland products being excluded from ‘Red Tractor’ or ‘Buy British’ marketing schemes.

Clause 22 stand part.

Amendment 34, in clause 23, page 28, line 3, at end insert—

“(2) For the avoidance of doubt and without prejudice to the generality of Schedule 3, the reference in Section 7A of the European Union (Withdrawal) Act 2018 (other directly applicable or directly effective aspects of the withdrawal agreement) to rights, powers, liabilities, obligations, restrictions that as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom, includes Article 2(1) of the Protocol on Ireland/Northern Ireland of the withdrawal agreement.”

This amendment would ensure that any person may rely directly on Article 2(1) of the Protocol on Ireland/Northern Ireland before any courts in the United Kingdom against all public bodies, including UK Ministers, and private bodies, such as employers.

Clause 23 stand part.

Amendment 32, in schedule 3, page 61, line 17, at end insert—

“4A After section 69D insert—

‘69E Notice to be given to Commission

(1) A court or tribunal shall order notice of any issue which affects law or practice relating to the protection of human rights in any proceedings before it to be given to the Northern Ireland Human Rights Commission (unless the Commission is a party to the proceedings).

(2) Where notice is given to the Commission under subsection (1), the court or tribunal shall—

(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and

(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.

(3) For the purposes of this section, “decision” shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.’”

This amendment would ensure the Northern Ireland Human Rights Commission is notified of cases relevant to the exercise of its functions under section 69 of the Northern Ireland Act 1998, similar to devolution notices provided to the Attorney General; and to ensure coherence with exercise of functions under the new dedicated mechanism provisions.

Amendment 30, page 63, line 39, at end insert—

“(3) A court or tribunal shall order notice of any issue which arises under Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement in any proceedings before it to be given to the Northern Ireland Human Rights Commission (unless the Commission is a party to the proceedings).

(4) Where notice is given to the Commission under subsection (3), the court or tribunal shall—

(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and

(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.

(5) For the purposes of this section, ‘decision’ shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.”

This amendment would create a requirement for a court or tribunal to notify the Northern Ireland Human Rights Commission of cases relevant to the dedicated mechanism, similar to devolution issue notification already provided to the Attorney General. The proposal would result in an amendment to new section 78C of the Norther Ireland Act 1998.

Amendment 31, page 63, line 39, at end insert—

“(3) A court or tribunal shall order notice of any issue which arises under Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement in any proceedings before it to be given to the Equality Commission of Northern Ireland (unless the Commission is a party to the proceedings).

(4) Where notice is given to the Commission under subsection (3), the court or tribunal shall—

(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and

(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.

(5) For the purposes of this section, ‘decision’ shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.”

This amendment would create a requirement for a court or tribunal to notify the Equality Commission of Northern Ireland of cases relevant to the dedicated mechanism, similar to devolution issue notification already provided to the Attorney General. The proposal would result in an amendment to new section 78C of the Northern Ireland Act 1998.

That schedule 3 be the Third schedule to the Bill.

Amendment 36, in clause 24, page 28, leave out line 15.

This amendment removes the bar on the Joint Committee recommending an alteration in the functions of an existing implementation body under the Belfast (Good Friday) Agreement.

Clauses 24 and 25 stand part.

Amendment 49, in clause 26, page 30, leave out lines 9 to 49 on page 30 and lines 1 to 15 on page 31.

This amendment would remove the power of Ministers to specify the circumstances in which lower courts within the domestic legal systems of the UK could depart from the rulings of the Court of Justice of the European Union after the transition or implementation period.

Clauses 26 to 36 stand part.

Amendment 29, in clause 37, page 37, line 2, leave out from “Europe),” to the end of line 19 and insert

“after subsection (1) insert—

‘(1A) In seeking to negotiate an agreement under subsection (1), it shall be an over-riding objective of the Minister of the Crown to secure outcomes which match as closely as possible those which applied before exit day under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) in so far as they relate to an application for the UK to take charge of or take back an applicant who is an unaccompanied.’”

This amendment seeks to maintain the status quo for applications for international protection lodged by unaccompanied children who are third-country nationals or stateless persons.

Amendment 26, page 37, line 3, leave out from “Europe)” to the end of line 19 and insert

“the following amendments are made—

‘(a) After subsection (1) insert—

(1A) The Secretary of State must, before IP completion day, make provision to ensure that, after the United Kingdom’s withdrawal from the EU, an unaccompanied child who has made an application for international protection to a member State may, if it is in the child’s best interests, come to the United Kingdom to join a relative who—

(a) is a lawful resident of the United Kingdom, or

(b) has made a protection claim which has not been decided.”

(b) In subsection (2) after “(1)(a)(i)” insert “and (1A)(a)”.

(c) In subsection (3) after “(1)(a)(ii)” insert “and (1A)(b)”.’”

This amendment would require the UK Government to guarantee continued family reunion rights for unaccompanied child refugees, while retaining the requirement on the Government to negotiate an agreement with the EU that protects those rights.

Amendment 4, page 37, line 3, leave out from “Europe)” to the end of the Clause and insert

“after subsection (3) insert—

‘(3A) If, three months after this Act comes into force, no agreement achieving the objective contained in subsection (1) has been concluded with the European Union, a Minister of the Crown must make a statement to the House of Commons setting out—

(a) the steps taken by Her Majesty’s government, and the progress made in negotiations with the European Union, for the purpose of achieving the objective in subsection (1); and

(b) whether in the Minister’s opinion an agreement with the European Union achieving the objective of subsection (1) is likely to be achieved by IP completion day and, if not, setting out the reasons for this.

(3B) Following the making of the first Statement referred to in subsection (2), and until such time as an agreement satisfying the objective contained in subsection (1) is reached with the European Union, the Minister shall, at least as frequently as every 28 days thereafter, make further statements in accordance with sections (3A)(a) and (b).’”

This amendment would protect the right for unaccompanied child refugees to be reunited with their family after Brexit.

Amendment 28, page 37, leave out lines 5 to 19 and insert—

“(1) A Minister of the Crown must, within 3 months of this Act coming into force, make provision for take charge requests from unaccompanied minors.

(1A) Regulations made under subsection (1) must operate in such a way that the provisions of Regulation (EU) No 604/2013 as they relate to unaccompanied minors are effective in UK domestic law.

(1B) The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 are amended by omitting subparagraph 3(h) in Part 2 of Schedule 1 to those Regulations.

(1C) In this section, “take charge requests” and “unaccompanied minor” have the same meaning as under Regulation (EU) No 604/2013.”

This amendment will ensure that the UK continues to accept take charge requests from unaccompanied minors.

Clause 37 stand part.

New clause 1—Parliamentary sovereignty over negotiations for the future relationship—

‘After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—

“13C Negotiations for future relationship

(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.

(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.

(3) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—

(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown that can be amended by the House of Commons so as to change the objectives for the future relationship, and

(b) a motion for the House of Lords to take note of that statement has been moved in that House.

(4) Prior to the House of Commons’s consideration of a motion under subsection (3)(a), a Minister of the Crown must have consulted with each devolved administration on the negotiating mandate.

(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—

(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and

(b) the subject of a motion of the kind mentioned in subsection (3)(b).

(6) The Secretary of State must publish the negotiating text of a proposed future relationship agreement on the same day that they are shared with EU negotiators.

(7) After the end of each reporting period, a Minister of the Crown must—

(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—

(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (3), and

(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and

(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—

(i) the Scottish Ministers,

(ii) the Welsh Ministers, and

(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.

(8) Subsections (9) and (10) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.

(9) A Minister of the Crown must, within one week of an agreement outlined in subsection (8), lay before each House of Parliament—

(a) a statement that political agreement has been reached, and

(b) a copy of the negotiated future relationship treaty.

(10) Prior to the laying of the text of the proposed treaty, the Secretary of State must have consulted with each devolved administration on the text of the proposed agreement and taken their views into account, with special consideration given to matters relating to devolved competences.

(11) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—

(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or

(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.

(12) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (11) applies in relation to the ratification of that treaty.

(13) In this section—

“devolved legislature” means—

(a) the Scottish Parliament,

(b) the National Assembly for Wales, or

(c) the Northern Ireland Assembly;

“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;

“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;

“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;

“reporting period” means—

(a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and

(b) each subsequent period of one month;

“statement on objectives for the future relationship with the EU” means a statement—

(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and

(b) published in such manner as the Minister making it considers appropriate;

“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—

(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and

(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;

“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).”’

This new clause restores the role for Parliament in providing scrutiny and oversight in the negotiations over the UK’s future relationship with the EU.

New clause 6—Parliamentary approval of the future relationship—

“(1) The Secretary of State may not engage in negotiations on the future relationship between the UK and the EU until a Minister of the Crown has laid a draft negotiating mandate before each House of Parliament and—

(a) moved an amendable motion in the House of Commons containing the text of the draft negotiating mandate;

(b) the draft negotiating mandate (as amended) has been approved by a resolution of the House of Commons, and

(c) a motion for the House of Lords to take note of the draft negotiating mandate has been moved in that House by a Minister of the Crown.

(2) The draft negotiating mandate must set out in detail—

(a) the UK’s negotiation objectives,

(b) all fields and sectors to be included in the proposed negotiations,

(c) the principles to underpin the proposed negotiation,

(d) any limits on the proposed negotiations, and

(e) the desired outcomes from the proposed negotiations.

(3) Prior to laying the draft negotiating mandate, a Minister of the Crown must have consulted each devolved administration on the negotiating mandate.

(4) Prior to the House’s consideration of a motion under subsection (1)(b), a Minister of the Crown must lay before both Houses of Parliament a sustainability impact assessment conducted by a credible body independent of government following consultation with—

(a) each devolved administration,

(b) public bodies, businesses, trade unions and non-governmental organisations which, in the opinion of the independent body, have a relevant interest, and

(c) the public.

(5) The assessment shall include both qualitative and quantitative assessments of the potential impacts of the proposed trade agreement, including—

(a) social,

(b) economic,

(c) environmental,

(d) gender,

(e) equalities,

(f) climate change,

(g) human rights,

(h) labour,

(i) development, and

(j) regional impacts.

(6) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the negotiating mandate approved under subsection (1)(b).

(7) After the end of each reporting period, a Minister of the Crown must—

(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—

(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the negotiating mandate approved under subsection (1)(b), and

(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that mandate, an explanation of why that is so, and

(b) lay before each House of Parliament the latest rounds of negotiating texts, by the end of each reporting period, and

(c) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—

(i) the Scottish Ministers,

(ii) the Welsh Ministers, and

(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.

(8) Subsections (9) to (13) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.

(9) A Minister of the Crown must lay before each House of Parliament—

(a) a statement that political agreement has been reached, and

(b) a copy of the negotiated future relationship treaty.

(10) Prior to the laying of the text of the proposed treaty, the Secretary of State must have consulted with each devolved administration on the text of the proposed agreement and taken their views into account, with special consideration given to matters relating to devolved competences.

(11) Prior to considering a motion approving the text of the negotiated future relationship treaty, the Government must lay before each House of Parliament a response to any report by a relevant Parliamentary committee (such as the Exiting the EU select committee) containing a recommendation in relation to the ratification of the agreement.

(12) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on an amendable motion moved by a Minister of the Crown and—

(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or

(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.

(13) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (11) applies in relation to the ratification of that treaty.”

This new clause ensures that MPs get a guaranteed vote with an amendable motion on the EU-UK Future Relationship and negotiating objectives, and sets out scrutiny of the negotiating mandate. It requires a sustainability impact assessment of the future relationship; the regular release of negotiation texts; and engagement with devolved administrations.

Amendment (a) to new clause 6, in line 39, after “(j) regional” insert “(k) health”

New clause 11—Consent and the Ireland/Northern Ireland Protocol—

“(1) Nothing in this Act affects section 4(5) and 42 of the Northern Ireland Act 1998.

(2) Accordingly, if 30 of its members petition the Northern Ireland Assembly expressing their concern about a matter which is to be voted on by the Assembly, the vote on that matter shall require cross-community support.

(3) ‘Cross-community support’ in relation to a vote in the Northern Ireland Assembly on any matter, means—

(a) the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or

(b) the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting.

(4) “Designated Nationalist” means a member designated as a Nationalist in accordance with standing orders of the Northern Ireland Assembly and ‘designated Unionist’ is construed accordingly.”

This new Clause re-states the existing law on the operation of cross-community support in votes of the Northern Ireland Assembly.

New clause 12—Consent and the Ireland/Northern Ireland Protocol (No. 2)—

“(1) Notifying the European Union of the outcome of the democratic consent processes under Article 18 of the Ireland/Northern Ireland Protocol is a matter for the Government of the United Kingdom under paragraph 3 of Schedule 2 to the Northern Ireland Act 1998.

(2) The Government of the United Kingdom must seek to apply any democratic consent process under or in connection with the Withdrawal Agreement in conformity with existing practice on votes requiring cross-community support in the Northern Ireland Assembly.

(3) The Government of the United Kingdom must accordingly seek to withdraw and replace any parts of the Declaration of 17 October 2019 by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the Democratic consent in Northern Ireland provision of the Protocol on Ireland/Northern Ireland which conflict with the existing practice on votes of the Northern Ireland Assembly requiring cross-community support.”

Paragraph 3(a) of the Declaration of 17 October 2019 by Her Majesty’s Government concerning the operation of the Democratic consent in Northern Ireland provision of the Ireland/Northern Ireland Protocol requires a threshold of a majority of members of the Northern Ireland Assembly present and voting. This new Clause seeks to replace that threshold with the normal cross-community support process.

New clause 13—UK internal market—

“(1) The Government of the United Kingdom must maintain and strengthen the integrity and smooth operation of the internal market of the United Kingdom of Great Britain and Northern Ireland.

(2) Accordingly it is a priority for the Government of the United Kingdom in negotiations on the future relationship with the EU to reach agreement to supersede any provisions of the Ireland/Northern Ireland Protocol which impede or conflict with the duty in subsection (1).”

This new Clause seeks to replace any provisions of the Ireland/Northern Ireland Protocol which fail to maintain and strengthen the integrity and smooth operation of the internal market of the United Kingdom of Great Britain and Northern Ireland.

New clause 14—Sovereignty and Northern Ireland—

“(1) Nothing in this Act contradicts Article 6 of the Union with Ireland Act 1800.

(2) Accordingly, Her Majesty’s subjects of Great Britain and Northern Ireland are entitled to the same privileges, and to be on the same footing as to encouragements and bounties on the like articles, being the growth, produce, or manufacture of either country respectively, and generally in respect of trade and navigation in all ports and places in the United Kingdom and its dependencies; and that in all treaties made by Her Majesty, her heirs, and successors, with any foreign power, Her Majesty’s subjects of Northern Ireland shall have same the privileges, and be on the same footing as Her Majesty’s subjects of Great Britain.”

This new Clause re-states the fundamental constitutional principle of unfettered trade between Northern Ireland and Great Britain.

New clause 15—Sovereignty and Northern Ireland (No.2)—

“(1) Nothing in this Act affects the status of Northern Ireland set out in section 1 of the Northern Ireland Act 1998.

(2) Accordingly, Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1 to the Northern Ireland Act 1998.”

This new Clause re-states the fundamental constitutional principle of Northern Ireland remaining part of the United Kingdom, unless a majority of the people of Northern Ireland vote to decide otherwise.

New clause 17—Objectives during negotiations—

“(1) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—

(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown,

(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown,

(c) a motion relating to that statement has been approved by a resolution of the National Assembly for Wales,

(d) a motion relating to that statement has been approved by a resolution of the Scottish Parliament,

(e) a motion relating to that statement has been approved by a resolution of the Northern Ireland Assembly.

(2) Notwithstanding subsection 1(e), a Minister of the Crown may engage in negotiations on the future relationship with the EU if the Northern Ireland Assembly has not approved the appointment of a First Minister and deputy First Minister within six weeks of the day on which this Act is passed.”

This new clause would require the Government to seek the consent of all the parliaments of the UK for its objectives during negotiations on the future relationship with the EU.

New clause 21—International trade—

“(1) The Government shall, during the implementation period, use its flexibilities under Article 129(4) of the Withdrawal Agreement to negotiate trade agreements with other parties.

(2) The Government shall, from 1 February 2020, and subject to the procedures for participation in the World Trade Organisation (WTO), exercise full rights as an individual member of the WTO and shall seek to—

(a) join any relevant committees and sub-committees that serve the UK‘s national interest, and

(b) speak in the WTO on all matters that serve the UK‘s national interest, notwithstanding the Duty of Sincere Co-operation under Article 4(3) of the Treaty on European Union and the Common Commercial Policy which are applicable during the implementation period.”

This new clause would mandate the Government to participate actively in the World Trade Organisation to serve the UK’s national interest.

New clause 22—Joint Committee representation from Northern Ireland—

“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—

‘15BA Joint Committee representation from Northern Ireland

The United Kingdom delegation to the Joint Committee must always include representation from Northern Ireland, namely either—

(a) a representative agreed jointly by the First Minister and deputy First Minister, or

(b) in period when there is no Northern Ireland Executive, a representative nominated by the Head of the Northern Ireland Civil Service.’”

This new clause would require Northern Ireland to be represented on the Joint Committee.

New clause 23—Joint Committee and the Belfast Agreement

“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—

‘15BB  Joint Committee and the Belfast Agreement

The United Kingdom representatives on the Joint Committee must have due regard for all aspects of the Belfast Agreement within their work.’”

This new clause would require UK representatives on the Joint Committee to have due regard for all aspects of the 1998 Belfast (Good Friday) Agreement within their work.

New clause 24—Joint Committee and Article 50 phase 1 report—

“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—

‘15BC  Joint Committee and Article 50 phase 1 report

The United Kingdom representatives on the Joint Committee must have due regard within their work to the UK government commitments in the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.’”

This new clause would require UK representatives on the Joint Committee to have due regard within their work to the UK government commitments in the joint report of 8 December 2017 from the negotiators of the EU and the UK on phase 1 of the Article 50 negotiations, including its references to unfettered access for Northern Ireland businesses to the whole of the United Kingdom internal market.

New clause 25—Specialised Committee on the Ireland/Northern Ireland Protocol Group representation from Northern Ireland—

“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—

‘15BD  Specialised Committee on the Ireland/Northern Ireland Protocol Group representation from Northern Ireland

The United Kingdom delegation on the Specialised Committee on the Ireland/Northern Ireland Protocol Group must always include representation from Northern Ireland, either—

(a) agreed jointly by the First Minister and deputy First Minister, or

(b) in period when there is no Northern Executive, nominated by the Head of the Northern Ireland Civil Service.’”

This new clause would require Northern Ireland to be represented on the Specialised Committee on the Ireland/Northern Ireland Protocol Group established under Article 14 of the Ireland/Northern Ireland Protocol.

New clause 26—Joint Consultative Working Group representation from Northern Ireland—

“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—

‘15BE  Joint Consultative Working Group representation from Northern Ireland

The United Kingdom representatives on the Joint Consultative Working Group must always include representation from Northern Ireland, either—

(a) agreed jointly by the First Minister and deputy First Minister, or

(b) in period when there is no Northern Executive, nominated by the Head of the Northern Ireland Civil Service.’”

This new clause would require Northern Ireland to be represented on the Joint Consultative Working Group established under Article 15 of the Ireland/Northern Ireland Protocol.

New clause 39—Fisheries—

“(1) Ministers of the Crown have as an objective in negotiations with the EU on the future relationship preserving, protecting and promoting the future of the fisheries industry based in Northern Ireland.

(2) In order to promote unfettered access of Northern Ireland fishermen to the UK internal market, Ministers must seek an agreement with the EU that fish caught in compliance with UK fisheries policy by trawlers based in Northern Ireland and landed in UK harbours for the UK internal market will not require after the end of the implementation period any more documentation than was required before exit day.”

This new clause aims to address a specific example of unfettered access in order to avoid an increase in paperwork being required for the Northern Ireland fishing industry after the UK leaves the EU.

New clause 40—State aid—

“(1) The UK Government must exercise its responsibilities for implementing and applying the provisions of Union law under Article 12 of the Protocol on Ireland/Northern Ireland in accordance with this section.

(2) The UK Government must, when exercising its responsibilities with respect to Article 10 of the Protocol (State aid) in relation to a Northern Ireland product, take no account of whether any products originating from Great Britain that are contained in that Northern Ireland product may have received state aid.”

This new clause would provide that any state aid provided to GB products that are included in Northern Ireland products cannot be taken into account when the UK Government assesses the state aid status of those NI products.

New clause 41—Regulatory divergence—

“(1) The Competition and Markets Authority must at intervals of not more than 12 months publish an assessment as to whether the effect of any regulatory divergence between the UK and the EU has been to place Northern Ireland businesses at a competitive disadvantage within the UK internal market that would constitute grounds for the UK to take safeguard measures under paragraph 1 of Article 16 of the Protocol on Ireland/Northern Ireland.

(2) The first assessment under subsection (1) shall be published no later than 12 months after the last day of the implementation period.

(3) If the Competition and Markets Authority makes an assessment under subsection (1) that the effect of any regulatory divergence is that there are grounds for the UK to take safeguard measures, the UK Government must within three months of receiving that assessment take safeguard measures under Article 16 of the Protocol that are in its opinion sufficient to remedy the competitive disadvantage.

(4) The Competition and Markets Authority shall report its opinion as to the adequacy and effectiveness of any safeguard measures under subsection (3) when making its next assessment under subsection (1).”

This new clause would require regular assessments by the CMA as to whether regulatory divergence between the UK and the EH has put Northern Ireland businesses at a serious competitive disadvantage, and in the event of such a finding would require the Government to remedy that disadvantage.

New clause 42—Specialised Committees—

“(1) Representatives of the United Kingdom attending specialised committees convened under Article 165 of the Withdrawal Agreement have a duty to represent the interests of Northern Ireland as an integral part of the United Kingdom.

(2) The United Kingdom Government must make arrangements for the Northern Ireland Executive to nominate at least one representative to the specialised committee on issues related to the implementation of the Ireland/Northern Ireland Protocol (see Article 165 (v) of the withdrawal agreement and Article 14 of the Protocol) and to each of the other specialised committees.

(3) In the absence of a Northern Executive, the Secretary of State must nominate representatives under subsection (2) after consulting the political parties comprising Members elected to the Northern Ireland Assembly.”

This new clause would ensure Northern Ireland representation on the specialised committees established under the Withdrawal Agreement.

New clause 43—Asylum claims after exit day—

“A Minister of the Crown must seek to negotiate, on behalf of the United Kingdom, an agreement with the EU which, after the United Kingdom‘s withdrawal from the EU, secures outcomes matching as closely as possible those which applied before exit day under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third- country national or a stateless person (recast).”

This new clause seeks to maintain the status quo for applications for international protection lodged by a third-country national or a stateless person under the Dublin III process.

New clause 44—Preventing discrimination—

“(1) A power of a Minister of the Crown under the law of England and Wales or of Scotland to make, confirm or approve subordinate legislation may not be exercised, on or after IP completion day, in a way that would result in law that treats qualifying NI goods differently from GB good, unless the difference in treatment is justified as mentioned in subsection (2).

(2) A difference in treatment is justified only if it is shown to be necessary and can deliver material benefits for the purposes of—

(a) protecting health of life of humans, animals or plants, or the environment,

(b) protecting national security, or

(c) ensuring that those involved in the production, supply or use of qualifying NI goods are put in a position that is no less favourable overall than those involved in the production, supply or use of GB goods.

(3) Subsection (1) applies to a power whether conferred before, on or after IP completion date.

(4) A Minister of the Crown must by regulations define ‘GB goods’ for the purposes of this section.”

This new clause would prevent a Minister of the Crown under the law of England and Wales or of Scotland using the power to make, confirm or approve subordinate legislation, on or after IP completion day, in a way that would result in law that treats qualifying NI goods differently from GB goods, unless the difference in treatment is justified as mentioned in subsection (2).

New clause 47—Accountability of the Joint Committee—

“After section 18 of the European Union (Withdrawal) Act 2018 insert—

‘18A Accountability of the Joint Committee

(1) A motion appointing the United Kingdom’s co-chair of the Joint Committee shall be laid before and approved by both Houses of Parliament.

(2) The United Kingdom’s co-chair of the Joint Committee shall always request that, unless for reasons of national security, all meetings of the Joint Committee are conducted in public.

(3) As far as is permitted by Rule 10 of Annex VIII to the withdrawal agreement, a Minister of the Crown must publish all decisions and recommendations adopted by the Joint Committee.

(4) Before attending each session of the Joint Committee a Minister of the Crown shall make an oral statement to the House of Commons setting out—

(a) the purpose and agenda of that Joint Committee meeting;

(b) the intended policy to be pursued by the Minister attending that Joint Committee meeting; and

(c) as far as possible the economic, social and environmental impact of any proposition to be determined at the Joint Committee.’”

This new clause requires the UK’s co-chair of the Joint Committee to be approved by Parliament, to ask the EU for Joint Committee meetings to be held in public where possible, for decisions of the Joint Committee to be published, and for a Minister to make a statement to the House of Commons ahead of each Joint Committee meeting.

New clause 52—Meaning of ‘unfettered access’—

“(1) In sections 21 and 22, ‘unfettered access’ for qualifying Northern Ireland goods means that businesses in Northern Ireland must continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market.

(2) Northern Ireland businesses shall enjoy the rights under subsection (1) regardless of whether they trade directly with Great Britain or trade via Dublin port.”

This new clause defines what ‘unfettered access’ means for the purposes of Amendments 12 and 16.

New clause 53—Duty of consultation when making regulations in connection with the Ireland/Northern Ireland Protocol—

“Before making regulations under sections 21 and 22, the Government and the devolved authorities must consult, and take account of the views of, the Northern Ireland Executive.”

This new clause would require the UK Government and the devolved authorities to consult and take account of the views of the Northern Ireland Executive before making regulations which could affect Northern Ireland’s place within the UK internal market.

New clause 54—Consent for any new trade frictions—

“(1) Regulations that would introduce new requirements on goods traded from Northern Ireland to Great Britain (including, but not restricted to, import customs declarations or origin checks) may not come into force without the consent of the Northern Ireland Assembly.

(2) No additional official or administrative costs consequent on any such regulations may be recouped from the private sector.”

This new clause would require the consent of the Northern Ireland Assembly before further trade frictions are imposed from Northern Ireland to Great Britain and would protect Northern Ireland businesses from paying for the administrative costs.

New clause 55—Northern Ireland’s place in the UK internal market—

“(1) As part of its obligation under Article 6.2 of the Protocol on Ireland/Northern Ireland to use its best endeavours to facilitate trade between Northern Ireland and other parts of the UK, the UK Government must—

(a) publish an assessment at least every 12 months of any negative impacts on businesses and consumers arising from the Protocol on trade between Great Britain and Northern Ireland and vice versa; and

(b) develop mitigations to safeguard the place of Northern Ireland businesses and consumers in the UK internal market.

(2) The assessment published under paragraph (1)(a) must include assessment of the impact of any actual or proposed regulatory or trade policy divergence on Northern Ireland’s place in the UK Internal Market.

(3) Any official or administrative costs arising from the duties under subsections (1) and (2) may not be recouped from the private sector.”

New clause 57—Consultation with the British Irish Council

“The British Irish Council must be consulted prior to any proposed changes in standards relating to food, the environment or employment in the process of negotiations for new trading relations between the United Kingdom and the European Union.”

New clause 58—Consultation with the British Irish Council (No. 2)—

“The British Irish Council must be consulted prior to any proposed changes in the United Kingdom’s devolution settlement as a direct result of the United Kingdom leaving the European Union, or any changes to the devolution settlement resulting from future trade agreements.”

New clause 60—Establishment of a mitigation package—

“(1) The United Kingdom Government must guarantee and fund the establishment of a mitigation package for businesses and communities in Northern Ireland.

(2) The impact and success of this fund shall be reviewed by an independent economic body every six months.

(3) The fund must be established in consultation with the devolved administration in Northern Ireland.”

New clause 61—Provision for EU Referendum in Northern Ireland—

“(1) Provision must be made to allow for Northern Ireland with the consent of a majority of people in Northern Ireland voting in a poll held for the purpose, to remain or (as the case may be) to join the European Union.

(2) If the expressed wish by a majority in such a poll is for Northern Ireland to remain or join the European Union, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as are agreed between Her Majesty‘s Government in the United Kingdom and the Government of Ireland.

(3) This section comes into effect only after a Legislative Consent Motion has been approved by the Northern Ireland Assembly.”

New clause 63—Border Impact Assessment—

“(1) The United Kingdom Government must work jointly with and commission, alongside the Government of Ireland and the Northern Ireland administration, an economic impact assessment on the border regions between the Republic of Ireland and Northern Ireland.

(2) This impact assessment must include recommendations on economic support and investment required to aid these regions after the United Kingdom leaves the European Union.”

New clause 64—Role of Devolved Administrations in trade negotiations—

The Northern Ireland administration, alongside other devolved governments and administrations, must have a formal role in all new trade negotiations conducted by the United Kingdom Government.”

New clause 65—Trade Agreement—

“The Northern Ireland Assembly must give legislative consent for any new trade agreement reached by the United Kingdom Government before new trading rules and standards are enacted.”

New clause 66—Maintaining EU Alignment—

“The United Kingdom Government must provide an annual analysis to the devolved administrations and governments as to what measures they can enact to ensure maximum regulatory alignment with the European Union standards as the EU’s laws are updated and enhanced.”

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to serve under your chairmanship, Sir Roger.

I rise to speak to amendments 38 to 49, which stand in my name and those of some of my colleagues, to amendment 10, which stands in the name of my hon. Friend Dr Whitford and some of my other colleagues, and to amendments 28 and 29 and new clause 43, which stand in the name of my hon. Friend Stuart C. McDonald.

We heard a lot yesterday from those on the Government Benches about the desire of the British people to get on with Brexit, so I would like to begin today by reminding them that the UK at present consists of four constituent parts, and that two out of four of them—Scotland and Northern Ireland—have voted to remain in the EU on every occasion they have been given, including the EU referendum in 2016 and thereafter.

I acknowledge and respect the fact that the Prime Minister and his party won a majority of the seats in England, but I ask those on the Government Benches to pause and consider that the Prime Minister did not win a majority of the seats in Wales, did not win any seats in Northern Ireland—indeed, remain parties won the majority of seats there—and that in Scotland, standing on a manifesto commitment to deliver Brexit and prevent a second independence referendum, the Conservative and Unionist party was reduced to a rump of six MPs, with the Scottish National party winning the election emphatically.

I ask then that this afternoon not be another session of “Scotland get back in your box” but that there is some respectful recognition of the democratic desire of my constituents and the majority of constituents in Scotland to remain in the EU. Rather than lectures about delivering the will of the British people, let us seriously consider that it is the role of the Opposition to scrutinise Bills. I realise that, inevitably, Brexit will now happen—I hope and believe that Scotland will find a way around that for Scotland—but that does not mean there are not legitimate concerns about the way in which the Government are seeking to deliver Brexit.

Photo of Geraint Davies Geraint Davies Labour, Swansea West

Does the hon. and learned Lady further accept that 16.5 million people voted for parties either supporting remain or a public vote on the deal versus 14.5 million who voted for the oven-ready Brexit? There is still a democratic mandate, therefore, for putting the deal to the people?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I have to say that I think the ship has sailed on that, because of the outcome of the election in England, but the ship has not sailed on Scotland’s constitutional future, because, like it or not, the Conservative party was reduced to a rump of representation in Scotland at the general election and my party won 47 of the 59 seats. It is surely a matter of concern in a democracy that is not a unitary state but consists of several nations that no matter how many amendments I and my colleagues table to the Bill, and probably every other Bill in this Session, we are unlikely to achieve a single amendment.

Rather than the braying and jeering that occurred when the leader of my group, my right hon. Friend Ian Blackford, got up to ask his questions this afternoon, I suggest to those on the Government Benches that if they really believe in preserving the Union of the United Kingdom they might want to show a little more respect, not necessarily to me or my right hon. Friend, but to those who sent us here to advocate what the majority of people in Scotland want—and, whether those on the Government Benches like it or not, the majority of people in Scotland do not want to leave the European Union but want a second opportunity to look at Scotland’s constitutional future in the light of England’s decision to leave the European Union. I defy any democrat to say that that is not a reasonable position. I gently suggest to those on the Government Benches that jeering at the representatives of voters in Scotland, shouting us down and rubbishing our legitimate concerns is not a sustainable position for the next five years.

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP Chief Whip, Shadow DUP Spokesperson (Business in the House of Commons)

I am a Unionist, but I share the hon. and learned Lady’s view that the voices from the various and diverse parts of the United Kingdom need to be heard. She is right to say that the Government are unlikely to accept any of the amendments that represent legitimate concerns, not least among those of us who represent Northern Ireland. Indeed, all the main parties have come together in an unprecedented way to back many of these amendments. I hope that, post the withdrawal agreement, there will be more consultation and discussion that will include the representatives of the various parts of the United Kingdom.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs) 12:45 pm, 8th January 2020

There is not much on which the right hon. Gentleman and I will agree, but we can agree on this point. There needs to be a recognition, along with the triumphalism of members of the Conservative and Unionist party about their win in England—which I understand, because we feel pretty triumphal about our win in Scotland—that, if theirs really is a Unionist party, they must engage properly with the representatives of the other parts of the United Kingdom.

Before I deal with the amendments in this group, let me raise again with Ministers the points that I made yesterday about the sweeping powers that the Government are taking to themselves in clauses 3, 12, 13, 14, 18, 21 and 27 to table delegated legislation making provision for areas of devolved policy. The Secretary of State tried to rubbish my interventions yesterday, but if he had time to read the independent report of the Scottish Parliament Information Centre overnight he will know that this is not some SNP party political diatribe, and that careful analysis of the Bill makes clear that it is a matter of fact that the Government are taking to themselves the right of British Ministers, acting alone, to produce delegated legislation in relation to devolved areas. That shows that the paragraph about which the SNP has complained on a number of occasions will actually be included.

The Secretary of State tried to deflect me yesterday, first by saying that the power related to reserved matters. That was simply not correct, as it clearly relates to devolved matters. He then suggested that the power that the Government were taking was merely technical. He will, of course, know that the Sewel convention does not apply to delegated legislation, although it probably would not matter if it did, because the Government are now prepared to drive a coach and horses through it. Interestingly, the Government’s delegated powers memorandum in relation to the Bill states that UK Ministers “will not normally” make regulations in relation to devolved areas

“without the agreement of the relevant devolved administration.”

That is what the Sewel convention says, but we know that it has lately been more honoured in the breach than the observance.

Let me ask the Secretary of State again to revisit the remarks that he made yesterday. Will he acknowledge, for the record—and these are matters on which there may be litigation in the future, so the record might be quite important—that the clauses to which I have referred give UK Ministers the power to make delegated legislation in relation to devolved matters? Will he acknowledge, for the record, that that constitutes an incursion into devolved policy that rightly causes concern not just to the Scottish National party but to all who believe in the devolved settlement?

I know that it is history, but 22 years ago 75% of the people of Scotland voted for that devolved settlement. It is worth remembering that the background against which they did so was years and years of Scotland voting Labour but getting a Conservative Government. Now they are seeing years and years of Scotland voting SNP but getting a Conservative Government. I think it reasonable to draw a lesson from that history: there probably will be another constitutional referendum in Scotland soon, because the tension that now exists is similar to the tension that existed in the 1990s. I look forward to hearing from the Secretary of State later today an acknowledgement of the power that is being taken by the British Government.

Overall, I would say that this Bill is about the Executive taking as much power to themselves as possible, not just from the Scottish Parliament and the Welsh Assembly but from this Parliament, with their swingeing use of delegated legislation and, in relation to clause 26, which I will come to in a moment, from the judiciary.

The Conservative and Unionist party’s manifesto revealed that the Government’s aim was to change the balance between Government, Parliament and the courts and, as my hon. Friend Dr Whitford said yesterday, we see in this Bill the beginning of the changing of that balance. We also see a continued attack on rights, not just the undermining of EU citizens’ rights, as we heard yesterday, and not just the undermining of workers’ rights, which we will come to later today, but the rights of child refugees.

It is fair to say that it is the proposal in the part of the Bill that we are discussing that has excited the most public comment. I have certainly received many communications from constituents who are worried about this, and in that connection I wish to speak to the amendments tabled in the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East—new clause 43, amendment 28 and amendment 29—and at least to address them at this stage, whether or not they are made, which is perhaps a matter for later.

Across Europe, thousands of unaccompanied children are living in the most desperate circumstances, many of whom are separated from their families. Legal family reunion is a lifeline to those children, who would otherwise risk their lives in dinghies or in the back of lorries to reach a place of safety with their families. We have seen some pretty awful evidence recently of what can happen when refugees resort to dinghies or the backs of lorries.

In 2018, in recognition of that fact, a cross-party coalition in this House, including prominent Members of all parties, including the Conservative and Unionist party, recognised the humanitarian need for family reunion to continue and secured a legal commitment from the then Government to negotiate a replacement for the current rules when we leave the European Union. For the Government now to seek to remove those protections risks causing panic among refugee families currently separated in Europe, with potentially tragic consequences. It is also deeply unacceptable to the constituents of many MPs in this House.

The Government say that they are going to continue with refugee family reunion, so it is not clear to me why they are going to the trouble of taking that commitment out of this Bill, unless they want to hedge their bets a bit. Based on experience, that is what I suspect they are up to. Without this obligation in the Bill, there will be no obligation on the Government to ensure that family reunion continues beyond the very restrictive rules in United Kingdom law.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

I was one of the supporters of the original family reunification amendments. I trust the Government and that this commitment will be stuck to in the appropriate place—an immigration Bill. Does the hon. and learned Lady acknowledge, however, that post-Dublin III there is a potential problem with the full extent of those family members who qualify for family reunification, and that that needs to be sorted out? There is also a problem with the rate at which potential applicants are processed in places such as Greece and Italy, which is not working well, and with the cost of applications. The whole scheme needs to be properly overhauled, and just bunging it into this Bill is not necessarily the best way of getting the best result that we all want.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

The answer to that is that the whole scheme is not being bunged into this Bill. The obligation to maintain certain minimum-level requirements is being taken out by the Bill, although it was agreed by cross-party Members, including Tim Loughton, in the last Parliament.

The UK’s immigration rules as they stand—apart from some very limited circumstances—allow children to reunite only with parents, not with other relatives, in the UK. Under the EU Dublin III regulation, children have a legal route to reunite with other family members such as siblings, grandparents, aunts and uncles, and 95% of children that the charity Safe Passage supports to reunite with family safely and legally would be ineligible under the current UK rules. The consequence of this is that they would be forced to remain alone, separated from their families. There is a legitimate concern that taking out this previous commitment, through the Bill, is the beginning of a move towards an absolutely minimalist approach by the Government to their rights and duties.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I want to put on record in Hansard that lots of people have contacted me by email about the issue that the hon. and learned Lady is referring to. There are many churches and many individuals in my constituency that want to see what she has asked for enshrined in legislation. I had thought that the Government were committed to doing that, and it is disappointing if they are not. If the Government want to reflect public opinion out in the street and mostly reflect public opinion in the constituency of Strangford and elsewhere, they should listen to the voices of the churches, the community groups and the individuals who want to see this happening. With that in mind, I will support the hon. and learned Lady.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I am grateful to the hon. Gentleman for his comments, with which I entirely agree.

Among the amendments that have been crafted by the SNP, new clause 43 is designed to oblige the Government to negotiate an agreement so that Dublin III as a whole continues as closely as possible to the current arrangements. So far as we can make out, it is different from other Opposition amendments, which focus only on children with family here. Our purpose is to challenge the Government to explain why the broader Dublin III system is not worth saving.

Amendment 28 relates specifically to children. Again, so far as we can see, it is the only Opposition amendment that goes beyond seeking an agreement and requires Ministers to put in place a scheme so that we keep accepting take-charge requests from unaccompanied minors. We in the SNP ask why that should be negotiated away. If we believe that children seeking international protection are best placed with their families, let us allow that to happen in the United Kingdom. If we get an agreement that the arrangement is mutual with the EU, that would be great, but why wait? Are we seriously saying that, in the unlikely event that the European Union decides to play bad cop, global Britain will not take these children?

Photo of Kate Green Kate Green Labour, Stretford and Urmston

I am following carefully the argument that the hon. and learned Lady is making. Does she not agree that the obligation the Government already have, under the Borders, Citizenship and Immigration Act 2009, to protect the best interests of children would be an essential factor in considering exactly the amendments that she is discussing, and that if they are refusing to accept those amendments, they are undermining that legislation and the intention behind it?

Photo of Yvette Cooper Yvette Cooper Labour, Normanton, Pontefract and Castleford

Does the hon. and learned Lady also find it troubling that the Government have chosen to remove the obligations in the European Union (Withdrawal) Act 2018 that everyone had accepted? They had been supported by Government Ministers and by this House as a sensible objective to negotiate an agreement to ensure that some of those vulnerable children could be reunited with their families. It was the most innocuous element of that Act, and it is therefore inexplicable that Government Ministers should suddenly decide that they want to take it away.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I agree. It is inexplicable, unless Government Ministers want to take the advantage of the majority they have secured from the English electorate to renege on an important humanitarian commitment, which, as Jim Shannon has said, represents the best about what people across these islands hold dear in their Christian faith, their other faiths or their humanitarianism. It is incumbent on the Government to tell us what they are really up to.

Photo of Geraint Davies Geraint Davies Labour, Swansea West

Will the hon. and learned Lady give way?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I want to make a bit of progress now.

I want to deal briefly with amendment 29, which is similar to ones advanced by other Opposition parties. It simply puts back in the Bill the obligation to negotiate an agreement for unaccompanied children. We see that very much as a fall-back, and we would like the House to go further than that.

I want to move quickly on to deal with my amendment 38 and those that follow it, which relate to the extent to which the Bill resorts to delegated powers in order for the Government to change the law in ways they feel are appropriate—not necessary, but appropriate—in relation to our withdrawal from the European Union. The Bill enables the Government to make potentially huge changes to the law through secondary legislation that cannot possibly enjoy the same level of scrutiny by this Parliament that one might expect in a properly functioning constitutional democracy that is contemplating such significant change as this Parliament seems determined to embark upon.

In the previous Parliament, I pressed Ministers to explain why the determining factor for the use of extensive delegated powers was whether they felt them to be appropriate, rather than necessary. “Appropriate” sets a very low and subjective threshold, enabling Ministers to implement a wide range of legislative measures without adequate parliamentary scrutiny. Many independent bodies, such as the Law Society of England and Wales and the Lords Delegated Powers and Regulatory Reform Committee, have suggested, as my amendments do, that the test should be narrowed to an objective test of necessity. If the role of Parliament in scrutinising delegated legislation will be reduced, the only other mechanism to scrutinise it will be through judicial review, and that puts quite a heavy burden on the individual.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Treasury) 1:00 pm, 8th January 2020

My hon. and learned Friend is making an important point. I sat on many Delegated Legislation Committees in the previous Parliament, and their ability to amend anything is nil. Does she agree that that is a woefully inadequate process, because while there is some degree of scrutiny, there is certainly no ability to change anything?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

My hon. Friend is absolutely right. The reality is that if this discretion will be scrutinised only in the courts after individuals have raised concerns about the impact of delegated legislation on their rights, then the breadth of discretion that the judiciary has to determine whether something is appropriate rather than necessary could be quite problematic. Indeed, that was reflected in the previous Parliament by judicial concerns about the breadth of discretion afforded by the word “appropriate.” I tried on numerous occasions in the previous Parliament to get Ministers to explain why they must have “appropriate” rather than “necessary,” but I am not a quitter, so I will try again today, and I will be interested to hear what the Minister has to say.

Moving on to amendment 10, in the name of my hon. Friend the Member for Central Ayrshire, I believe that she will speak about it later or may wish to intervene on me, but I will just deal with it fairly briefly, because it is important. Others will obviously speak about Northern Ireland at length this afternoon, but amendment 10 deals with powers in relation to implementing the Northern Ireland protocol. As my hon. Friend said yesterday, the arrangements in relation to the protocol are pretty sketchy, with almost everything left to the Joint Committee to work out and then to be enacted, again, through delegated powers.

However, a significant difference exists between the restrictions on the powers afforded under proposed new section 8C and those under previous similar sections, such as section 8B(5) of the European Union (Withdrawal) Act 2018, because there is no restriction on the powers, for example, in relation to their ability to impinge on the devolved settlements of Scotland and Wales. Of course, concerns exist about the extent to which business organisations, the food and drink industry and, particularly, inshore fishing, as we heard yesterday, could be impacted upon in Scotland by the Northern Ireland protocol.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Exiting the European Union)

This obviously also relates to the Northern Ireland Act 1998 and is of concern, perhaps in this Chamber, in relation to the Human Rights Act 1998. Looking at what proposed new section 8C would replace, the 2018 Act contains limitations that had become relatively standard, so I find it suspicious that they are missing. There is no sunset clause, no restriction on taxes or new offences and, in particular, no protection for the devolved Administrations or the Human Rights Act. That is really worrying, because we are being asked to sign up to something when we have no idea of the long-term ramifications.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

As, I think, a Committee of the House of Lords pointed out, it is unusual for restrictions in relation to the Human Rights Act, the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 not to appear in relation to delegated powers, so I am interested in hearing why those restrictions do not appear and in learning how the Government think the implementation of the Northern Irish protocol will impact upon the Scotland Act. Indeed, I am in interested in the impact on the Government of Wales Act and the Human Rights Act, and why the Government want to take delegated powers to interfere with the Human Rights Act and the devolved settlement in Scotland.

Turning quickly to clause 26 and my amendment 49, they relate to the concern expressed by many that the Government are amending section 6 of the European Union (Withdrawal) Act 2018—the original provision being that the Supreme Court for the whole of the UK or, in relation to criminal matters, the High Court of Justiciary were not bound by retained EU case law and could depart from that case law in the same way that those Supreme Courts would depart from their own case law. However, in an almost—I think I am correct in saying—unprecedented use of delegated legislation, in clause 26 the Government intend to take the power to pass regulations specifying additional courts or tribunals that could depart from EU law. That is a most unusual approach, and I am wondering what has prompted it.

I am interested in the justification for clause 26. Is it an act of revenge on the Supreme Court of the United Kingdom and the Supreme Court of Scotland for daring to defy the previous Conservative Government by ruling their unlawful Prorogation out of order, or is there some other rationale? I would be interested to hear what it is, because their lordships were taking a close interest in this clause. Even if I am not able to move the SNP amendment to the clause today, which would revert to the status quo in the previous Act, I am sure it will be moved in the House of Lords, because there is a real concern that the aim here is to impact upon the independence of the judiciary, and that different regulations applying to different courts about the extent to which EU law was overruled or could be applied will interfere with the important principle of legal certainty. In some ways, this is a probing amendment, but it is an amendment which, if not moved in this House, will be moved elsewhere, so it would be interesting to hear from the Government exactly why they consider it necessary to diverge so radically from the previous a course of action upon which they were determined.

Before I conclude, I want to say a few brief things about a number of important amendments tabled by the other parties. The SNP would be inclined to support the official Opposition’s amendment 4 on child refugees if they move it, although we would like to go a bit further than that, as I indicated earlier. We are also keen to support amendments from the official Opposition relating to transparency on the arrangements for Northern Ireland and on general scrutiny and oversight. We also give our wholehearted support to the amendment tabled by Caroline Lucas and to new clause 17 from our friends in Plaid Cymru.

It is, of course, a great pleasure, particularly for myself and my colleagues in the SNP, to have the company of Irish nationalists once more in this Chamber. While I totally respect and understand Sinn Féin’s historical reasons for abstentionism, it is good that we will again hear the voice of Irish nationalism on the Floor of this House and the voice of a significant part of the community in Northern Ireland. It is good to be reminded that Northern Ireland, like Scotland, voted to remain in the European Union. We will be keen to lend our support to the amendments tabled by the Social Democratic and Labour party.

In conclusion, I am certain that not one single amendment sponsored by the Scottish National party will pass in relation to this Bill, just as not a single amendment sponsored by the Scottish National party passed in relation to the Scotland Bill back in 2015, despite the fact that we had 56 out of the 59 MPs in Scotland and now have 48 out of 59.

It is worth remembering that the devolution settlement, which this Bill will undermine, was predicated on the idea expressed in the claim of right for Scotland, which asserts that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. Of course, on 4 July 2018 the previous Parliament unanimously endorsed that principle in the claim of right. The previous British Parliament accepted that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. That means that this House has itself recognised, explicitly and unanimously, the principle of self-determination for Scotland. I look forward to seeing whether the Government have any proposals to reverse that in this Parliament.

To return to what I said at the opening of my remarks, I say to the Government that the day is coming when the people of Scotland will once again vote on whether Scotland should regain its former status as an independent nation state. The hubris, insouciance and lack of respect for democracy embodied in this Bill will hasten that date and ensure victory for the independence movement.

Several hon. Members:

rose—

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. For clarification, and as the hon. and learned Lady indicated, although a considerable number of amendments and new clauses have been grouped for debate under this group, only the lead amendment at this stage is moved, so the Question is that amendment 38 be made. It gives me pleasure to call, for what will be his maiden speech in his capacity as a knight of the realm, Sir Robert Neill.

Photo of Bob Neill Bob Neill Conservative, Bromley and Chislehurst

Thank you very much indeed, Sir Roger. It is a pleasure to see you in the Chair and to follow Joanna Cherry. I do not share her political analysis, but I do have sympathy with some of the legal points she raises, which I will address.

I will start with the interpretation of retained EU law, which raises an important issue. As the hon. and learned Lady has said, concerns have been raised by many lawyers, regardless of their political views. I speak as someone who supported the Bill’s Second Reading, who will support it on Report and on Third Reading, and who stood on a manifesto commitment to implement the Bill. The lawyer in me, however, says that it is particularly important that we get this detail right. That is why I hope I can press Ministers for a little more detail and explanation as to why they have chosen a particular course to achieve their objectives.

I accept that there will be circumstances in which it will be necessary for courts to depart from EU law once we have left the European Union. I have no problem at all with that. I am concerned, however, that the Government’s chosen formulation for clause 26 has the potential to upset the well-established hierarchy and system of binding precedent that has characterised English common law and, to a greater or lesser degree, that of the other jurisdictions of the United Kingdom. The system of binding precedent is important because we have always regarded it as a benchmark of English law that gives certainty, in that lower courts cannot depart from the decisions of higher courts. That has served us well for centuries and is not something from which we should lightly depart.

It is going to be important for the future, too. If we are to advance Britain’s position as an international legal centre and an international financial and business centre—as I hope and am confident we will—certainty of law is important. I am a little concerned, however, that, without more explanation, the Government might risk getting to a stage where—inadvertently, I have no doubt, and perhaps for the sake of speed—they may undermine that valuable asset. That would have perhaps two consequences, which I will touch on.

Judgments made over the years by the European Court of Justice have been embedded in domestic judgments of our courts, including those of the Supreme Court. It seems odd that power should be given to a lower court to, on the face of it, depart from a Supreme Court judgment interpreting the European law as it then was. On the face of it, and without more explanation, that seems to me to upset the doctrine of binding precedent and risks driving a coach and horses through a fundamental part of our system. That is not something we should undertake lightly. Will the Minister explain the rationale behind it and precisely how the Government will go about it? Why is it necessary?

People who will seek to litigate or enter into contracts during the EU withdrawal period, or immediately after—many commercial contracts will run over that period—will want to do so in the knowledge that they will have certainty as to what the law is likely to be. If the law is likely to be disapplied, that will be done either by an Act of Parliament, which is fair enough, or by a judgment of the High Court or, if appropriate, the Supreme Court, working through the usual hierarchy of precedence. It would be bizarre to allow an employment tribunal or even a High Court judge sitting at first instance to, on the face of it, have the power to disapply EU law in a way that might not be consistent with the ruling of the higher court in previous cases. I am sure that that is not the intention, but the wording as it stands, without more being said, seems to open up the risk that that could happen. I hope the Minister will help us and explain how that will be avoided, because I am sure it cannot be what the Government want.

There is a second risk, though also unintended, I am sure. As well as being embodied in judgments, previous ECJ decisions in EU law have been embedded in policy decisions, which have been made sometimes in this House by primary or secondary legislation, and sometimes through the executive actions of Ministers and other executive bodies and agencies. If one is inviting a lower court to depart from EU law on those matters—and, perhaps, to overturn some of those decisions—we run the risk, as the Law Society fairly points out, of, ironically, dragging our courts into areas of potential political controversy. I cannot believe that the Government wish to do that. Moreover, given that in recent months people in some circles have been critical of the UK’s higher courts for their judicial activism—personally speaking, I think that is unfair—it would be a little ironic and odd if we were to encourage judicial activism by the lower courts. I cannot possibly think that that is what the Government want to do. Without an explanation or refinement of the wording of the clause—I do not expect the Minister to do that now, because he will have time to do so—it seems to open up another risk. I hope he will explain the thinking behind it and how we might avoid that unintended and, I am sure we would all agree, undesirable consequence.

The European Union withdrawal agreement dealt with that subject by saying that only the Supreme Court could depart from EU case law. That makes absolute sense, in accordance with acceptance of our binding hierarchy of courts and the precedent of judgments delivered by the courts. Can the Minister be more specific as to precisely why it is that the Government have chosen to depart from that principle in this case? If the issue is one of time, that should be reflected in the urgency with which we address the negotiations and in the resources given, including to the courts, to deal properly with such matters. I am not saying that I do not want appropriate decisions in relation to EU law to be made, but I do not think we should imperil a much broader system for the sake of expediency in relation to a narrow point. I am sure the Minister knows that I approach the issue from a constructive point of view. I hope he will give us more detail and reflect on the matter.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West 1:15 pm, 8th January 2020

I am alive to my hon. Friend’s concerns—indeed, I share them—but does not clause 26 provide protection by giving the Minister the power to make regulations that will have to go through this House? That is a statutory intervention, albeit not an Act of Parliament. It is by the will of this House that those intrusions would be made.

Photo of Bob Neill Bob Neill Conservative, Bromley and Chislehurst

I say to my right hon. Friend: yes, up to a point, Lord Copper. Although it may be by the will of the House, I urge the Committee to be cautious in going down such a route, which profoundly changes the centuries-old approach to English common law. Secondly —this is a point that I will make in a moment—there is an issue with the way in which we scrutinise regulations that the Committee may be asked to make. That relates to clause 18, to which I will return briefly. It is about getting those two bits right.

I am conscious that elsewhere in the legislation, there is an obligation upon Ministers to consult the senior judiciary when making some of those regulations. I welcome that important safeguard—it must be a very full consideration. With every respect to my right hon. Friend Sir Desmond Swayne, I do not think that we have a complete answer as yet. In particular, we need an explanation about the departure from the position as it was in the European Union (Withdrawal) Bill. As the hon. and learned Member for Edinburgh South West alluded to, there is a concern that we run the risk of an increase in judicial review were there a deficiency or uncertainty in the way in which we deal with those matters.

I hope the Minister will confirm that, as well as the commitment to consult the judiciary, there will be very wide and early consultation under the provisions of clause 26. That should obviously include the senior judiciary throughout the UK, but I hope it will also take on board the broader concerns of legal practitioners to find the right formula. For example, it could include experts like those who serve on the Law Society’s Brexit law committee—that is fundamental to the workings of our financial services—and who work for other such organisations. By pressing the Minister in this way, I seek to make sure that we get that right.

That brings me to my second and final point, which relates to clause 18 and the way in which we consider delegated legislation. I note that the hon. and learned Member for Edinburgh South West hinted that amendment 39 is a probing amendment, and I am glad of that. I have some sympathy with it, but I accept that the Minister might want to reconsider, between now and the passage of the Bill through the other place, how best to deal with the issue. On the face of it, it is surprising to substitute an objective test with a subjective one when dealing with matters of such importance.

Photo of Bill Cash Bill Cash Conservative, Stone

When dealing with issues of interpretation of European law in the context of our own previous methods of judicial interpretation, those of us who are familiar with Maxwell as compared to Craies know what the differences are. Does my hon. Friend believe that we should be moving towards the stare decisis system—in other words, a system based on precedent—rather than to purposive interpretation, which is the basis on which European law currently operates? Professor Richard Ekins of Oxford University and others are very conscious of that. He has written a very interesting paper.

Photo of Bob Neill Bob Neill Conservative, Bromley and Chislehurst

It is indeed a very interesting paper. Having been brought up as a common lawyer myself, my preference is inevitably to move towards a stare decisis approach. I think that that is something that we all wish to move back to as we reconstruct our statute book and legal texts thereafter. My hon. Friend and I will be entirely in accord on that.

The question is really about the route that we choose to get there and ensuring that we have proper scrutiny of that route, because any deficiencies in regulations would likely result in a judicial review. That is another irony: I am sure that the Government would not want greater risk of judicial review of their actions than is absolutely necessary. It would be a funny Government who made work for lawyers in relation to judicial review. That might be interesting for some of us, but I am sure that it is not something that the Government wish to do. However, without more explanation as to why we are going down that route, that is the risk.

First, I suggest to the Minister that he should seriously consider whether we move to a “necessary” as opposed to “appropriate” test—an objective test—which is much more likely to withstand challenge in the courts, because it is more likely to be readily evidenced and, I would have thought therefore, to the Government’s advantage. If the Government get their ducks in a row early when making regulations and have evidence to back the objective test, they are much more likely to withstand legal challenge.

Secondly, the Government would be much less likely to face challenges and we would get better scrutiny if we moved—certainly for the majority of policy considerations —to using the affirmative rather than the negative procedure. That would perhaps be a fair balance in the House. We will not necessarily be able to do primary legislation for all of our withdrawal, because there is too much of it. Sensible use of secondary legislation, to remove references to the European Union or something of that kind, can of course be done by the negative procedure. When policy considerations are involved, however, the use of the affirmative procedure would be consistent with the Government’s objective of bringing back control to the House, and with the movement towards our traditional UK approach to legal matters. I hope that the Minister will say something about that when he responds.

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

It is a pleasure to see you in the Chair, Sir Roger, and I look forward to serving under your guidance. It is also a pleasure to follow Sir Robert Neill, who has given the Treasury Bench much to think about on the difference between subjective and objective tests, which I will bear in mind in my remarks.

I rise to speak to the official Oppositions’s amendments in this group. Amendment 1 relates to full transparency on the implications of the Northern Ireland-Ireland protocol. Amendment 4 would restore the clauses from the previous version of the Bill that related to negotiating arrangements for the protection of unaccompanied child refugees. New clause 1 would restore to the Bill the process of parliamentary scrutiny—it has been removed since the previous version of the Bill—over the process and outcome of negotiating the future relationship with the EU after we leave. I am sure that you will tell me if I stray from the topic of debate, Sir Roger.

The Opposition have tabled amendment 1 because the Government appear to be incapable of clarity about the implications of the Ireland-Northern Ireland protocol on the people of Northern Ireland and Great Britain, their jobs, their businesses and their way of life. That is too important to leave to chance. The people of Northern Ireland, and the people of the whole United Kingdom, need and deserve the transparency and accountability that the amendment proposes.

This part of the withdrawal agreement and the Bill have to be considered in the light of the historical context. The Good Friday/Belfast agreement was an extraordinary moment in the history of these islands and an awe-inspiring achievement of the incoming Labour Government of 1997 and of the latter period of the Major Government. Nobody my age could have thought that we would see peace in Northern Ireland in our lifetimes. The change to our way of life and the benefits to the people of Northern Ireland were unimaginable before the agreement. The Good Friday/Belfast agreement brought in a new era of peace and reconciliation.

The people of Northern Ireland, as well as its politicians across political and other divides, deserve our respect and admiration for how they have built the peace, worked to build united communities and created a way of life that seemed impossible a quarter of a century ago. Surely, no politician of any affiliation would want to destabilise that achievement—I am sure that that includes the Minister, Mr Walker, who is nodding. I am sure he needs no reminding—I will remind him anyway—that the Government have a legal obligation to adhere to the terms of the Good Friday/Belfast agreement. That means no opt-outs, no wiggling and nothing other than solid, uncompromising adherence to and support for the spirit and the letter of the agreement, no matter how hard that may be. Too many people have sacrificed too much for peace for the Government to do otherwise.

These are no small matters, so it is troubling in the extreme that the Government do not seem to know their own mind or the implications of their own protocol. The consequences of a return to a hard border or divisions between Great Britain and Northern Ireland, the fears emerging for people in Northern Ireland and the problems for businesses across the UK are all serious matters—hence our amendment. Businesses in Northern Ireland have spoken with one voice and are rightly concerned about the potential impact of border checks on goods between Northern Ireland and Great Britain. So, too, are businesses across other parts of Great Britain. Any business that currently sends goods to Northern Ireland should not have to expect border checks within the UK.

Businesses in Bristol West have already told me of their anxieties about checks between the UK and the rest of the EU27, but at least those checks were anticipated after the 2016 referendum. Those businesses should not have to expect border checks within the UK, between Great Britain and Northern Ireland.

Not only that but the Prime Minister has, at times, appeared at odds with his own Secretary of State on what the practical implications and, therefore, the trading and economic implications will be for the movement of goods between Great Britain and Northern Ireland. Northern Ireland’s place in the United Kingdom is enshrined in the Good Friday/Belfast agreement. We must honour that agreement, and the Government should not be afraid to be open about how they are honouring it. That is why we ask them to consider supporting amendment 1.

Photo of James Brokenshire James Brokenshire Conservative, Old Bexley and Sidcup 1:30 pm, 8th January 2020

I do not think any Conservative Member would, in any way, demur from the need to uphold the Belfast/Good Friday agreement, which has provided the bedrock of political stability, but does the hon. Lady acknowledge that the withdrawal agreement itself specifically underlines the point about unfettered access and, equally, that the protocol is intended to be replaced by the enduring agreement that we wish to strike with the European Union?

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

I thank the right hon. Gentleman for his intervention but, of course, it is far from clear that that will be the case. What we are actually seeing, even from the Secretary of State, is that there will be customs checks. There will have to be border checks because of the nature of the protocol.

I ask the Minister to provide clarity. If James Brokenshire is correct, all well and good, but that is not the impression we have been given.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

The hon. Lady’s points are appropriate and balanced. James Brokenshire, a former Secretary of State for Northern Ireland, suggests, as has been suggested throughout this debate, that there is automatic secession from the Northern Ireland protocol—there is not. Article 13(8) is very clear that the only way we secede from the Northern Ireland protocol is, first, if the European Union agrees and, secondly, if the confines of the protocol are no longer required. Those two things are not in our gift, so there is no certainty of our automatic secession, as Thangam Debbonaire was invited to believe.

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

The hon. Gentleman is quite right. It is because of that uncertainty that many people in Northern Ireland have understandable fears about the future.

Photo of Karin Smyth Karin Smyth Labour, Bristol South

My hon. Friend is making an excellent point. We heard it again yesterday that the Government’s intention is for Britain to diverge from the European Union. If that is the case, as we are being led to believe, it is inevitable that there will be border checks somewhere. With respect to James Brokenshire, there is absolutely no guarantee and no certainty. It is the Government’s wish to diverge that is causing this problem.

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

My hon. Friend is absolutely right. I, too, sat through yesterday’s debate, and that seemed to be what was being said. The Brexit Secretary himself said that there will have to be some sort of checks, which is inevitable. If we are to diverge from the current rules and Northern Ireland is to remain within them, there will have to be checks. It is no wonder that the people of Northern Ireland are concerned about the potential impact on their place within this United Kingdom.

Businesses in Bristol West have already told me of their anxieties, as I said, but they had a right not to expect there to be border checks within the UK. Northern Ireland’s place is enshrined in the Good Friday/Belfast agreement, but this is not just about trade—that is why I mentioned the agreement. This is about people. It is about values. It is about hopes and fears for the future, and it is about the feeling of belonging. It is about relationships between and within communities.

There is a perception among some in Northern Ireland, as hon. Members have mentioned, that a border nobody voted for will be created within the United Kingdom down the Irish sea. A border in the Irish sea does not bring people together, as the Good Friday/Belfast agreement does; it divides people and pulls them apart.

Amendment 1 seeks to give the Government a way of renewing their commitment to the Good Friday/Belfast agreement by showing that they still believe in the Union—the full Union of the United Kingdom of Great Britain and Northern Ireland. The amendment would require them to report openly and transparently on the implications of the protocol for the movement of goods between Northern Ireland and Great Britain and vice versa, for the Northern Ireland economy, for the fiscal and regulatory compliance of goods travelling between Northern Ireland and Great Britain, and for barriers to trade for third-country goods entering Northern Ireland and Great Britain from the rest of the EU and third countries.

Amendment 1 would require the Secretary of State to publish a report and lay it before both Houses of Parliament and each devolved legislature, and to provide for debate and proper scrutiny in both Houses. The first report should appear before 31 October. I can see no problem with that. If there is no problem, as the right hon. Member for Old Bexley and Sidcup says, what is the problem with transparency? It would not take the Government very long to do that reporting, and our constituents and the people of Northern Ireland have a right to expect such transparency.

If the Government do not support amendment 1, I can only ask them to respond. Do they feel they owe it to the people of Northern Ireland to report sufficiently on the commitment they made earlier in this process to avoid a hard border? What is it about transparency and accountability to the people of the whole United Kingdom to which they object?

Photo of Jeffrey M. Donaldson Jeffrey M. Donaldson DUP Chief Whip, Shadow DUP Spokesperson (Business in the House of Commons)

On transparency and reporting, it is important that Northern Ireland is represented on the proposed Joint Committee on the Northern Ireland protocol so that we have a direct input into how the arrangements are enacted.

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

That sounds like an eminently sensible idea.

The Opposition support the cross-party amendment, new clause 55, and I will come on to the other clauses. The Labour party has consistently proposed a solution to the possibility of Brexit causing a border either on the island of Ireland or in the Irish sea, and our customs union proposal would prevent both. There will be a chance to discuss that proposal later today, and the Government will have a chance to consider it. In the meantime, I ask them to consider amendment 1.

Clause 37 is an astonishing breach of faith with some of the most vulnerable children in the world. Our amendment 4, which we will push to a vote, seeks to restore that faith. My right hon. and learned Friend Keir Starmer and the noble Lord Dubs, our dear friend and colleague, have today written jointly to all Conservative Members to urge them to support amendment 4 and thereby scrap clause 37.

Photo of Bambos Charalambous Bambos Charalambous Labour, Enfield, Southgate

The UK has already reneged on its commitment to the 480 child refugees who were due to come to the UK from France under the Dubs scheme. This withdrawal agreement is a further regression of the UK’s moral duty to help vulnerable refugee children, so does my hon. Friend agree that amendment 4 would require the UK to show that it is serious about its humanitarian obligations?

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

I absolutely agree with my hon. Friend. This is about who we want to be as a country—who I believe the British people already are—and how we want to be seen. As Conservative Members will know, there is no mandate for this change. The change was not in their general election manifesto or in any statement of support for the withdrawal agreement of which I am aware, although they are welcome to contradict me. It is deeply wrong for the Government to seek to remove this provision on protecting vulnerable children just because they can.

I am sure that many Conservative Members are troubled by this, and I hope some are having words with their Whips right now. I know their constituents will be shocked by the breach of trust between the people of this country who, no matter who they voted for in December, believe that protecting vulnerable children is part of who we are as a country. Brexit or no Brexit, that is who we are.

I believe the Minister is an honourable man, and perhaps he will seek to remedy this breach of faith by not objecting to amendment 4, and thereby not put his MPs in an awkward position. We shall see.

Clause 37 removes the commitment to negotiate an agreement with the EU27 on protecting child refugees. If the Government will not back our amendment to change that, I hope they will explain it. Joanna Cherry has already outlined much of the case, and I am grateful to her for supporting our amendment and for laying out the legal detail, as I am not as capable as she is to do so.

This commitment belongs within the Bill. The Government have said otherwise, but we believe it belongs here because, as well as keeping faith with the noble Lord Dubs and others both inside and outside Parliament, the existing provisions for the protection of children would then be the basis for negotiating an agreement. We must consider the fact that the clock is ticking; we leave the EU at the end of this month and we will then have only a few months more to agree the future relationship. The regulations that currently provide the legal basis for child refugees to be reunited with adult relatives will end if we do not put any other negotiated agreement in place in that time.

Surely, there can be no right hon. or hon. Member in this place who does not respect and admire the work of our colleague and friend Lord Dubs, who, with warmth and determination, eternal optimism and good faith, has campaigned, and inspired others to campaign, for us to do more, not less, for vulnerable child refugees travelling alone and trying to get to safety. Who among us can fail to recognise his extraordinary example and his achievements? I hope that I am wrong, but it would seem that, unfortunately, the Government do not recognise them. That is certainly Lord Dubs’s view and it is mine, too, because in clause 37 they have reneged on that commitment. More importantly, they have reneged on a commitment to child refugees themselves, to secure arrangements at the earliest opportunity on how to protect children elsewhere in the EU who have an adult relative legally in the UK, either with status or in the asylum process.

Family reunion is one of those things that should not need explaining, but apparently it does: families belong together. Families who are traumatised by war, persecution and conflict are often forced to make decisions that none of us would ever want to have to make. Sometimes, in their journeys to safety, they are separated, and we should be doing everything we can to help reunite them, wherever they are, because that is part of who we are as a country. The British Red Cross and other refugee organisations have recommended that clause 37 be removed and that the provision be restored, and the Government could do just that. They have said that there is no change of policy and that it is just not appropriate for this provision to be in this Bill—the Minister is nodding. Why should it not be in this Bill? It was in the October version. The provisions end this year and I have heard no whisper of any negotiations so far with the EU about this provision, although I am happy to be corrected if the Minister knows otherwise.

In numerous reports, such as the House of Lords European Union Committee report “Brexit: refugee protection and asylum policy” and the House of Commons Foreign Affairs Committee report “Responding to irregular migration: A diplomatic route”, the importance of providing safe and legal routes to protection has been noted. They point out, for example, that policies that focus

“exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups.”

They have warned:

“In the absence of robust and accessible legal routes for seeking asylum in the UK, those with a claim are left with little choice but to make dangerous journeys by land and sea.”

The Government have rightly shown concern about people setting out on those dangerous journeys, but making it harder to come by legal routes is what prompts them. The Government recognise the need—I have heard them do this—to do more to prevent desperate and vulnerable people setting out in leaky boats and taking other dangerous routes, but this recognition is hollow words if it is not followed up with the action needed to increase safe and legal routes. The Minister will know, as I have pressed on this on many occasions, in different contexts and different debates, that refugee resettlement and refugee family reunion saves lives and prevents those dangerous journeys.

Clause 37 is worse than I have set out, as not only does it fail to increase our response, but it goes backwards. It risks going backwards because we have no commitment on what will happen and it is totally unnecessary. Let me set out some things the Government could choose to do and commit to right now. They could commit that family reunion rights will be protected, with priority afforded to unaccompanied children. They could tell us they will replace the family reunion elements of Dublin III by prioritising negotiation with the EU and with key member states so that there is an agreement that allows individuals who have claimed asylum to be reunited with their family members. The Government could commit to allowing children to join extended family members in the UK who have the legal right to be here because they are in a process or they already have status.

We hope that the Government and their Back Benchers will recognise the rightness of this cause and the moral justification for it. We hope that they understand that the people of the United Kingdom will want them to do this. We hope they will also join us in paying tribute to the many community organisations, volunteers, councillors and individuals who have shown our national values, and demonstrate them daily, by protecting, and offering to protect, still more vulnerable people. We hope the Government will acknowledge that and accept our amendment.

Finally, I come to the issue of parliamentary scrutiny. An extraordinary turn of affairs has occurred between versions 1 and 2 of this Bill: the Government have totally removed the process of parliamentary scrutiny over the negotiations for the future relationship with the EU. Our new clause 1 therefore seeks to restore this scrutiny. Do we want to leave the European Union just for the Government to be able to ride roughshod over the views of the democratically elected Members of this House of Commons, on our side and on the other? Do our constituents really want us to have less say, not more, over the relationship with our nearest neighbours? Did the people we represent really go to the polls on a dark, cold, rainy and windy day in December to elect us, on this side of the House and on that, so that we can simply agree to hand over power to the Executive on this, the single most important issue of our times? Is this really what “Get Brexit done” means?

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West 1:45 pm, 8th January 2020

Throughout the proceedings yesterday the Labour Back Benches were empty. For half the time there was only one Member there—Labour’s only surviving Eurosceptic—but for most of the time there was nobody there at all and we ended up finishing early, such was Labour’s determination to provide scrutiny.

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

The right hon. Gentleman is well aware that the Labour party had leadership hustings last night and that the Front-Bench team were here and fully engaged. I am talking now about the future relationship. Labour Members know, reluctantly or not—for many of us, this will be a sad moment—that on 31 January we will leave the EU. We accept that, but I am now talking about scrutiny of the future relationship. The shamefully misleading impression given by the Government that electing them in December would mean that Brexit would be “done” by the end of January and that we could move on to other matters is a terrible way to treat the people of the United Kingdom, whoever they voted for.

I am sure the Prime Minister and his entire Front-Bench team are fully aware that Brexit does not just get “done” when we leave, as we are going to and as the Opposition have acknowledged, on 31 January. I am certain that newly elected, as well as returning, Conservative Members know perfectly well that all that will happen on 31 January is that we will leave the European Union. They know that none of the agreement on the future relationship, or of the arrangements for sharing information about criminals or trading, or for co-operating on research or on moving life-saving medicines between the UK and the rest of the EU, will be “done”. That will all be still to do. The Government have set a wildly unrealistic expectation, not only that Brexit will just get “done”, but that the many aspects of the future relationship will be “done” by the end of June this year, for the transition to be over by the end of December. In doing that, the Government treat the economy, jobs, lives and welfare of the people of the UK recklessly.

Clause 33 means that the implementation period comes to an end on 31 December, in all circumstances, as Ministers said yesterday. Even if we have not worked out how people who currently work across borders in the EU can continue to do so, Ministers are prohibited by law—they will be by the end of tomorrow—from asking for an extension period. If the agreements on how we share information about terrorists and criminals, or on other important aspects of data sharing, are only days away, we will still not be allowed to ask for an extension, even one that is just for days. Even if the arrangements for the movement of medicines are not complete, there will be no extension. [Interruption.] This is related to this amendment, because we are asking for scrutiny of the process. If the Government are going to insist on this transition period coming to an end no matter what, surely we should have a right to scrutinise the process.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

The hon. Lady is making a powerful speech. She should ignore the jeers and concentrate on the forcefulness of the points she is making. Does she agree that the situation she has just described, whereby favourable agreements just a few days away from being negotiated would be given up in favour of this shibboleth of a certain date, is the classic definition of cutting off your nose to spite your face?

Photo of Thangam Debbonaire Thangam Debbonaire Opposition Whip (Commons)

I do agree with the hon. and learned Lady on that. I say again that that shows why we need this amendment, because it is about the scrutiny of the process. If we are to accept this ridiculous idea that there must be no extension to the transition period, even if it is for just days, at least we should have the right to scrutinise that process, on behalf of the people we were sent here to represent. This is not about whether there is good or bad faith on the part of the EU member states. I am sure that they will, as we all hope, negotiate in good faith, but there are practical implications here about the sheer volume of work to be done to reach agreements on all these vital aspects of our future relationship and secure the parliamentary approval of 27 other countries by the end of this year.

I am saddened, but no longer shocked, that the Government rejected our sensible proposal yesterday, but I hope that today they will consider our sensible proposal on scrutiny. It is not too much to ask that we, the elected representatives of the United Kingdom—of all parties, including the Government party—have the right to hear from our Ministers on the aims and objectives of the negotiations, the progress made and the outcome. It is not too much to ask that we be guaranteed that right, with the opportunity to debate and discuss, rather than having to wait for possible a ministerial statement or being forced to beg for information via an urgent question.

Surely, Government Members can see the wisdom in our proposal. They, too, were elected to represent their constituents, not just to be lobby fodder for their Prime Minister. If they have a business in their constituency on which jobs depend, and the ability to trade relies on the continuation of an agreement between the UK and the EU, do they not want to be able to ask their Government about whether that is included in the negotiating objectives and to be able to find out how that is going? If they have a constituent whose life depends on the movement of a medical device from one EU country to the UK, do they not want to be able to find out whether that is part of the negotiations and how that is going? Surely, they will want to be able to represent their constituents.

Members may not realise that the Law Society has recommended reinstating the scrutiny role. They may have forgotten that the Supreme Court judgment in the 2017 Gina Miller case made it clear that the Government cannot make or withdraw from a treaty that amounts to a major change to UK constitutional arrangements without parliamentary oversight. Or maybe this does not count. I ask all Government Members to consider pushing their Government, and I ask the Minister—I say again that I know him to be an honourable man—to consider restoring the full process of parliamentary scrutiny. I ask them to commit today to doing that. They could choose to adopt the Opposition amendment, or they could achieve it in some other way. I do not mind; I just believe that, as elected representatives, we should be able to represent the people who sent us here on the most important change to our way of life, our jobs, our businesses and our security in our lifetimes.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

Before I address the provisions we are debating, I wish to acknowledge the enormous hard work and professionalism of officials in the Department for Exiting the European Union, in which I had the privilege to serve for more than two years, and in the territorial offices in which I have served since, in bringing this Bill and the withdrawal agreement to the position they are in today. I pay tribute to all those in the devolved Administrations and the Northern Ireland civil service who have contributed to our work on EU exit and to ensuring that the whole UK is able to leave the European Union in an orderly way. The Bill may have been a long time in coming, but it is delivering on a mandate for the whole United Kingdom. It has been a privilege to work with colleagues from every part of the United Kingdom in preparing and delivering it.

I agree with Thangam Debbonaire about the importance of the Good Friday Belfast agreement. It is absolutely right that it has been a central focus of the exit process from the start. We do not need amendment 1 to state our firm commitment to both the Good Friday agreement and the principle of consent, or, indeed, my party’s absolute commitment to the United Kingdom.

I shall talk briefly to the purpose of clauses 18 to 37 and schedules 3 and 5 before I go into the detail of the amendments. As a Northern Ireland Minister, I make no excuses if most of my focus in respect of the amendments is on Northern Ireland. I am sorry not to have heard from more Northern Ireland colleagues so far; I shall try to make time to ensure that I can.

First, the clauses set out how EU law will be wound down at the end of the implementation period. Secondly, they enable the UK to fulfil its international obligations under the financial settlement. Thirdly, and crucially, they implement the regulatory, customs and other arrangements contained in the Northern Ireland protocol; protect rights and arrangements contained in the Belfast Good Friday agreement; and avoid a hard border. Fourthly, they update the European Union (Withdrawal) Act 2018 so that it operates as intended in the light of the withdrawal agreement. Fifthly, they allow UK courts to interpret UK laws and not to be inadvertently bound by historic European court cases. Sixthly, they provide a mechanism for Parliament to consider EU legislation that raises a matter of vital national interests, thereby increasing parliamentary scrutiny. Seventhly, they ensure that the Government are properly accountable for their work in the withdrawal agreement Joint Committee, and that Parliament should be informed on formal dispute proceedings that arise from the withdrawal agreement. Eighthly, they guarantee that we can ratify the withdrawal agreement on 31 January by ensuring that once the Bill receives Royal Assent there are no further parliamentary hurdles to ratification. Ninthly, they repeal unnecessary or spent enactments relating to EU exit.

I shall now address the amendments—

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I am happy to take interventions as I address the amendments; perhaps the right hon. Gentleman will let me move on to that first.

I agree with what Sir Jeffrey M. Donaldson said in an intervention about the importance of every part of the UK being heard. I recognise that many of the amendments are focused on securing Northern Ireland’s interests in the next phase of the Brexit process, and we absolutely recognise the support they have received from across the Northern Ireland business and political community. If and when the Executive is restored, the UK Government will be ready to consider commitments concerning the Executive’s role in future discussions with the European Union and to engage with them as we safeguard Northern Ireland’s integral place in the UK. The Government cannot accept any of the amendments to the clauses that implement the protocol on Ireland and Northern Ireland, for a number of reasons.

First, let me address new clauses 14, 15, 39 and 40, all tabled by the right hon. Member for Lagan Valley, as well as new clauses 63 and 13. At the outset, I should confirm that the protocol does not affect the constitutional status of Northern Ireland, which remains part of our political and economic union.

Photo of Stephen Timms Stephen Timms Labour, East Ham

The Government’s impact assessment for the Bill states:

“Goods moving from Great Britain to Northern Ireland will be required to complete both import declarations and Entry Summary (ENS) Declarations”.

Is that statement correct?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

It is clear that there are reporting requirements in the functioning of the protocol, but, as is clearly set out in article 6 of the protocol, we want to ensure that we use the Joint Committee to reduce them and make sure that we have the absolute minimum burden. The protocol itself clearly gives the Government the ability to provide unfettered access. I shall address that in more detail as I go on.

Northern Ireland remains in the UK customs territory and can benefit from future trade deals that we strike with the rest of the world. The Prime Minister has repeatedly made it clear that the deal is good for businesses and individuals in Northern Ireland.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

Does the Minister agree that it would be enormously helpful if the Government’s stance ensured that whatever regulatory regime is required, it is not only of the lightest touch but is as cost-neutral as possible? Therefore, there needs to be detailed discussion with Treasury colleagues to see what mechanisms may exist for reclaiming, either through the VAT process or offsetting against personal or corporation tax, in order to make it cost-neutral, with the understanding that we need to be able to do something.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

My hon. Friend raises an interesting and important point. As he will appreciate, I cannot necessarily make commitments on behalf of Treasury colleagues at this stage, but I have no doubt that he will assiduously press for Northern Ireland’s interests with the Treasury.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I will give way to the hon. Gentleman, but I will need to make some progress so that he and his colleagues can speak.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

The Minister is humble enough to recognise that he cannot make commitments on behalf of the Treasury, but he should go a step further and say that he cannot make commitments on behalf of the European Union, either. That is our fundamental problem with the withdrawal agreement and its implications for Northern Ireland. There is no point asserting sovereignty and indicating that Northern Ireland is fully in compliance with the customs territory of United Kingdom, only to hand that power to a Joint Committee with the European Union.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

As he always does, the hon. Gentleman makes his point powerfully. It is clear from the protocol that Northern Ireland is part of the United Kingdom customs territory, and that we want to make sure that we maintain unfettered access between Northern Ireland and the rest of the United Kingdom. There are powers in the protocol for the Government to do that.

Let me make a little progress. The Government are committed to ensuring that the Belfast Good Friday agreement is upheld throughout our departure from the European Union. The protocol is clear that it protects rights contained in that agreement, and the Bill gives effect to the UK’s commitments in that regard. We are confident that the new functions conferred on the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are sufficient for them to carry out their roles in the dedicated mechanism. It will be of particular interest to some Opposition Front Benchers who have raised concerns with us that the Bill confirms the Northern Ireland Human Rights Commission’s “own motion” standing under the Human Rights Act 1998, as well as providing for such standing under the protocol. I direct Members’ attention to paragraph 5 of schedule 3. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland will form the bedrock of the dedicated mechanism established under article 2(1) of the protocol. All the powers necessary for these bodies to perform their necessary functions are provided in schedule 3. I therefore urge Stephen Farry to withdraw amendments 32 and 34, which are unnecessary, so that we can allow for the dedicated mechanism.

Photo of Stephen Farry Stephen Farry Alliance, North Down 2:00 pm, 8th January 2020

I am happy to withdraw my amendments in the light of the Minister’s comments, but I ask him to respond further on the need for both the Human Rights Commission and the Equality Commission to receive the same notification as the Attorney General on human rights or equality issues that come before the courts or tribunals?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I hear the hon. Gentleman’s point, which I am happy to look into, but my understanding is that under the Bill those bodies have the powers they need to acquire the necessary information. I am grateful to him for his gracious withdrawal.

New clauses 11 and 12 were tabled by Sir Jeffrey M. Donaldson. I want to make it clear from the outset that the Government’s commitment to the Northern Ireland Act 1998 and the Belfast agreement, which it implements, is unfaltering. The consent mechanism contained in the protocol, for which the Government will legislate before the first vote is required in 2024, operates on the basis of a majority of democratically elected representatives in Northern Ireland being able to continue or end alignment with EU law. I am certain that this is the right mechanism. The right position in principle is not to hand a veto to any one party—not to Brussels, not to Dublin and not to any one party or community in Northern Ireland. That is what our consent mechanism does. I therefore urge the right hon. Gentleman to withdraw his amendments and back this arrangement.

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit)

Does the Minister not recognise the incompatibility of the two statements he has made? He wants to adhere to the letter and the spirit of the Belfast agreement, yet he is prepared to set aside one of its most fundamental parts—that, on controversial issues and issues that one community feels threatens its identity and the things it values, there should be a mechanism whereby there is a difference in the majority vote. He seems not to understand that the protocol and the terms of this Bill set that very vital safeguard aside.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. Before we proceed, let me provide this clarification. The Minister referred to withdrawing an amendment, as did Stephen Farry. At this stage, there is no need to withdraw amendments, because none of them has been moved. It is only the lead amendment that has been moved.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I apologise, Sir Roger. I stand corrected.

I absolutely recognise the principle in the agreement on contentious domestic matters in Northern Ireland. We are talking about a consent mechanism that is being given to the Assembly uniquely in the case of an international agreement, because we recognise the importance of the issue. We also recognise the benefits of cross-community consent, which is why our approach would mean that a vote recurs more often if a decision is taken without that cross-community consent.

It is the responsibility of the Northern Ireland Executive and the Irish Government to develop consultation, co-operation and action within the island of Ireland—including through implementation on an all-island and cross-border basis—on matters of mutual interest within the competence of the Administrations north and south and not the responsibility of the UK Government. That is why clause 24 ensures that the UK cannot agree to the making of a recommendation by the Joint Committee, which would alter the arrangements for north-south co-operation. As the protocol ensures these aims and the Bill give effect to those commitments, I urge the hon. Members for Belfast South (Claire Hanna), for Foyle (Colum Eastwood) and for North Down to withdraw amendment 36 as it is not necessary to achieve the aims that it seeks.

Photo of Karin Smyth Karin Smyth Labour, Bristol South

I am grateful for the Minister’s comments on clause 24. I am a favoured, seasoned bureaucrat, and I do like a bit of transparency around governance and process. I am struggling to understand how the relationship works between the proposals from the Good Friday Belfast agreement bodies, particularly the North South Ministerial Council, to this specialised committee, which has no enforcement power but has an ability to recommend to the Joint Committee, which apparently has a supervisory power. We are not sure whether that body can then take action, or whether it just makes recommendations back to the North South Ministerial Council. We are in an ever-moving circle of recommendations, but with no action. The real concern with clause 24 is that it is in aspic in 2020. The ability to move on relationships seems to be lost, and the ability to do that with democratic accountability back to the people across Ireland and the United Kingdom is lost, and that is a serious governance point that the Government need to address.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I hear the hon. Lady’s point and I have great respect for the work she does in this space, but I think she misunderstands. Clause 24 simply means that, as a result of the protocol and the UK Government’s role in the Joint Committee, there will not be decisions taken to change north-south co-operation. It does not prohibit or restrict in any way a restored Executive from taking decisions on that within the confines of the North South Ministerial Council. I have to move on now, but, in fairness, I think that that addresses the point.

The Government urge the hon. Member for North Down and the hon. Member for Foyle to withdraw amendment 33 and new clause 61 as they risk creating legal uncertainty for businesses and individuals in Northern Ireland, which is unacceptable to the Government. Our departure from the EU requires the Government to ensure that the statute book is able to function post exit, and these amendments put that at risk.

I wish now to turn to the important amendments 12, 19, 50 and 51 and new clauses 44, 52, 55 and 60. As Members can see from article 6 of the protocol, nothing in the withdrawal agreement prevents the Government from ensuring access for Northern Ireland goods to the market in Great Britain. The Prime Minister has been absolutely clear that, beyond our obligations under international law, there will be no new checks and processes on the movement of such goods. Our manifesto commitment is absolutely clear: the Bill gives us the power to deliver this. We recognise the strong voice with which Northern Ireland’s businesses have been speaking on the importance of unfettered access and of protecting Northern Ireland’s position within the internal market as a whole and the cross-party, cross-community support for this to be delivered. It can be delivered through clause 21 and through the opportunity to follow up through the Joint Committee, as we discussed earlier. We will, of course, continue to engage with businesses and stakeholders, but I none the less urge the right hon. Member for Lagan Valley and the hon. Member for Foyle to withdraw these amendments.

Photo of Owen Paterson Owen Paterson Conservative, North Shropshire

I am listening very carefully to my hon. Friend’s comments. Does he agree that, as expressed in the DUP’s amendments, there is very widespread concern across Northern Ireland and among business groups about the proposal of the protocol? He is trying to explain the details, but it is still going to be complex and it is still going to cause unhappiness and concern. Does he agree that it would be best if, in the course of this year, the Government committed to a comprehensive free trade agreement in which Northern Ireland comes out absolutely on a level pegging status on every issue with the rest of the United Kingdom? All the problems with the detail of the protocol would disappear, because Northern Ireland would be on a level pegging with the rest of the UK as part of a free trade agreement.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

My right hon. Friend speaks with considerable experience and passion on these issues. Of course I agree with him, but what we want is a free trade agreement for the whole of the UK that addresses these issues and allows us the most frictionless access to our neighbours and good trade for all of us. For Northern Ireland, that would be an excellent result. We have to focus on the fact that this Bill is about the withdrawal agreement, and that includes the protocol. We need to take through the protocol to ratify the withdrawal agreement and move forward into that negotiation.

The Government are committed to maintaining the highest levels of transparency and scrutiny in relation to this Bill and to the implementation of the withdrawal agreement. We have been clear on that, but the exact form of accountability needs to be appropriately framed, so the Government cannot accept new clauses 53, 54 or 65, which would place an undue burden on the Government but not provide the transparency and scrutiny that they purport to achieve. It is no surprise that the Opposition, through amendment 1, seek to place hurdles in the way of our exit, but the result of the general election across the United Kingdom shows that they lack the mandate to do so and that we have a clear mandate to proceed. We should do so without the hurdles that the previous Parliament consistently threw in the way of progress.

Photo of Bill Cash Bill Cash Conservative, Stone

I wish to ask my hon. Friend to reflect on one point. Under this Bill, the European Scrutiny Committee, both in the Commons and the Lords, will have the power to examine certain matters. I know that he knows about that, but there is also the question of interpretation, which comes up in this set of proposals. I wish to reinforce the exchange that I had with my hon. Friend Sir Robert Neill, which is that clause 5 has not been addressed, and that reaffirms the supremacy of EU law before exit day. We need to keep an eye on the question of the quashing and disapplication of Acts of Parliament as we proceed.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I absolutely take on board my hon. Friend’s comments. As we are discussing parliamentary scrutiny, I am sure that he will welcome the clauses that set out a role for the European Scrutiny Committee.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I will also come back to the issue raised by my hon. Friend.

As is standard in international agreements, the withdrawal agreement sets out procedures for dealing with disputes concerning compliance with the agreement. Amendment 24 would require parliamentary approval for the payment of any fines or penalties under the withdrawal agreement. The withdrawal agreement is a binding agreement that will place the UK under a legal obligation to make those payments. We have to be clear that we will honour our international legal obligations, and we therefore cannot accept any conditionality on payments.

I turn to amendments 38 and 46 in the name of Joanna Cherry. It is essential that the powers in clauses 18 to 22 can be used to enable all appropriate measures required by the withdrawal agreement to be implemented by the end of 2020. Restricting the power in the manner proposed would limit the Government’s ability to implement the withdrawal agreement in the most sensible way. I remind the hon. and learned Lady that the use of “appropriate” in statute is not at all new. There are myriad examples elsewhere on the statute book of powers that use the term “appropriate” to describe the discretion available to Ministers when legislating. I remember well that we discussed the question of “appropriate” versus “necessary” many times during the passage of the European Union (Withdrawal) Act 2018, and Parliament accepted the use of the word “appropriate”. There is no persuasive reason why we should depart from that approach here.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

In the Scottish Parliament’s legal continuity Bill—which of course was struck down by the Supreme Court after the Conservative party retrospectively changed the law in the House of Lords—the power that Scottish Ministers afforded themselves for making delegated legislation used the word “necessary” rather than “appropriate”, so it is not the case that all Governments in these islands afford to themselves the sort of sweeping powers that the Minister is planning on affording himself. There are very legitimate concerns about this issue that are shared not just by politicians but by members of the judiciary. What does he have to say in response to the points raised not just by me, but by Sir Robert Neill, who was the Chair of the Select Committee on Justice in the previous Parliament?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I obviously pay heed to those points when they are raised, but I am told that the term “appropriate” actually better allows us to take better steps to ensure that multiple options can be explored when the legal changes are complex and interact with numerous pieces of existing legislation; so there are other elements to take into account.

Photo of Bob Neill Bob Neill Conservative, Bromley and Chislehurst

I have three points to make. First, perhaps the Minister could set out what those “better steps” are. Secondly, will he address the issue of consideration under the affirmative resolution procedure as opposed to the negative resolution procedure, which might put some of my concerns to rest? Thirdly, before he finishes, will he tell us why we moved from the formulation of the Supreme Court in clause 26 to the lower courts?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I will absolutely come back to my hon. Friend on the latter point. There are a number of places in the Bill where it is very clear that there will be active consideration by the Commons of the secondary legislation. That is an important part of the parliamentary scrutiny process.

I turn to amendment 10 in the name of Dr Whitford. It would inhibit our ability to implement part 3 of the withdrawal agreement and the protocol, particularly with regard to the ability to legislate for the consent mechanism and the provision of unfettered access. However, I reassure the Committee—this picks up from the point made by my hon. Friend Sir Robert Neill—that any amendment to primary legislation through clauses 18 to 21 would have to be actively approved by votes of Parliament.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Exiting the European Union)

But this changes clause 8 in the original European Union (Withdrawal) Act 2018, which included limitations meaning that these sweeping powers without a sunset clause could not be used in relation to the Human Rights Act, the Government of Wales Act, the Scotland Act or the Northern Ireland Act. What changes exactly does the Minister feel he would need to make to the Scotland Act to meet the relevant aspects of the Northern Ireland protocol? Why is the legislation being changed? The Minister should justify why those protections and limitations existed in the original Act but he now feels bound to take them out. What is he planning to change in the other devolved settlements, for Scotland and Wales?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office) 2:15 pm, 8th January 2020

The hon. Lady is making a comparison between two separate pieces of legislation. We have no dastardly plans to change the devolution settlement. However, we want to ensure that we are able to take the necessary steps to implement the protocol, including providing unfettered access across all parts of the UK, in the limited period available. We will want to engage with the devolved Administrations and legislatures about the most effective way of achieving that.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I will not, I am afraid.

The Government cannot accept amendment 49, as it would mean that we could be inadvertently bound by European Union rulings for many years. Instead, clause 26 ensures that we and our courts will be able to determine the extent to which courts are bound by historic Court of Justice of the European Union decisions after the implementation period. This will be done sensibly, so I can provide some reassurance to my hon. Friend the Member for Bromley and Chislehurst. The Bill commits us to consult the senior judiciary across the UK before making regulations, and we do not intend this in any way to upset long-standing constitutional principles such as the structure and hierarchy of the court system. This clause simply enables us to take back control of our laws and disentangle ourselves from the EU’s legal order, but in a way that will be consulted on carefully with the judiciary, recognising the structures and hierarchies that exist there.

New clauses 1, 6 and 17 and amendment (a) to new clause 6 all seek to introduce various statutory roles for Parliament, and for the devolved Administrations and legislatures, in the future relationship negotiations. These are unnecessary requirements that risk impeding and delaying negotiations. New clause 6 in particular imposes onerous requirements for consultation and impact assessments, but would make it very challenging indeed to conclude negotiations by the end of 2020.

Photo of Caroline Lucas Caroline Lucas Green, Brighton, Pavilion

Does the Minister recognise that what he refers to as “onerous requirements” are precisely what our colleagues in the European Parliament enjoy right now? Does he not find that there is a rather ironic point here, which is that we are supposed to be taking back control—although we assumed that meant to elected representatives, not just to No. 10—but we actually have less control than the colleagues we have left behind in Brussels?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I fundamentally disagree. The purpose of the Bill is to deliver on the withdrawal agreement and take that forward. It is not to set out the future of negotiations. This legislation is focused on allowing us to move forward into those negotiations. It would be a profound mistake to tie the hands of the Government in achieving the best result for the whole United Kingdom.

Photo of Debbie Abrahams Debbie Abrahams Labour, Oldham East and Saddleworth

Given that we have flatlining life expectancy and an increasing infant and child mortality rate—the worst in western Europe, which is quite staggering—will the Minister explain why he is not prepared to introduce an assessment of the impact on health of the trade deal, because there will be a significant impact? I really would like an adequate response.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

The hon. Lady talks about assessments of future deals. The place in which to do that is not legislation that is focused on implementing the withdrawal agreement. I am afraid that it is simply not the case, as it was in the last Parliament, that the political arithmetic means that the Opposition can tie the Government up with all sorts of commitments and assessments. We need to ensure that we get the best deal for our economy, our health and our country, and it is right that we move forward by accepting the withdrawal agreement, legislating through the Bill and focusing on the next stage.

Photo of Hilary Benn Hilary Benn Labour, Leeds Central

As the Minister will be well aware, new clause 1 bears a marked resemblance to clause 31 in the previous version of the Bill. The Prime Minister said to the House on 22 October, talking about the now disappeared clause 31, that

“the intention is to allow the House to participate actively and fully in the building of the future partnership”—[Official Report, 22 October 2019;
Vol. 666, c. 840.]

and the clause set out a whole process for doing that, so why was it a good idea to have that in the version of the Bill produced in October, but now it has apparently become completely unnecessary and terribly onerous for the Government?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

The answer to the right hon. Gentleman’s question is perhaps in some of the exchanges we had during that debate, when I was reaching out to him to suggest that he ought to support our orderly withdrawal from the European Union so that we could get on to the next phase of negotiations. Since then, we have had a general election that provides a clear mandate for this Government to take us forward, to deliver the withdrawal agreement, and to get into that next phase of negotiations. I think we need to focus on that.

We have are already engaged extensively with the devolved Administrations in our preparations for the negotiations, and we will of course continue to involve all parties, including those in Northern Ireland, as we begin those negotiations. Indeed, this speaks to the absolute necessity and the vital urgency of restoring a functioning Executive in Northern Ireland as soon as possible. The Government will support Parliament in scrutinising the negotiations. We have made a clear commitment in this Bill to Parliament’s scrutiny of the withdrawal agreement Joint Committee. To that end, clause 30 provides that when disputes arise, they must be reported to Parliament. Further, clause 34 states that only a Minister will be able to act as the UK’s co-chair of the withdrawal agreement Joint Committee, and clause 35 ensures that all decisions must be made by a Minister in person. That Minister will be accountable to Parliament. We therefore believe that new clause 47 should not be pressed.

The Government fully recognise the important role that devolved Administrations will play in ensuring that our independent trade policy delivers for the whole of the UK. It is the responsibility of the UK Government to negotiate on behalf of the United Kingdom, and it is vital that we retain appropriate flexibility to proceed with negotiations at pace. However, we have been clear that the devolved Administrations will remain closely involved. Therefore, there is no need to make provisions in statute when the Government are already working tirelessly to ensure that the views and perspectives of devolved Administrations are given full consideration in the United Kingdom’s trade policy. As such, I would urge hon. Members not to press new clause 64.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Women and Equalities) , Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Business, Energy and Industrial Strategy)

There is something deeply ironic about the fact that if we were to remain in the European Union, trade negotiation objectives would have to be agreed with individual nation states. Indeed, in Belgium, the devolved legislatures for Wallonia, Flanders and the Brussels region would have an individual say. Does the Minister not agree, therefore, that in this situation, given the different nature of the economy of Wales, with its manufacturing, farming and services to people, Wales’s devolved legislature, alongside the devolved legislatures of Scotland and Northern Ireland, should have a say in the objectives of the trade agreement negotiations as a very minimum?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

We have always taken the interests of Wales, Scotland and Northern Ireland very seriously in this process. We have always engaged. I have personally been to the Welsh Assembly on a number of occasions to give evidence.

The conduct of international relations is reserved to the UK Government, so representation at the Joint Committee, the specialised committees and the joint consultative working group is a matter for UK Ministers. However, I recognise the particular interests of the Northern Ireland parties given the role of these committees in the protocol, and this is a matter we would like to discuss further with the parties in a restored Executive. However, it would be wrong to pre-empt such discussions in this legislation. As such, I would urge hon. Members not to press new clauses 22, 26 and 42.

New clause 66 would require the Government to report to the devolved Administrations—

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I am afraid I will not at the moment, but I will come back the hon. Gentleman if I can.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

No.

New clause 66 would require the Government to report to the devolved Administrations on maintaining alignment with EU law, but devolution settlements already lay out the terms under which devolved Administrations can make law, while the common frameworks provide a forum for intergovernmental deliberation on the use of these powers. This new clause is therefore unnecessary.

Photo of John Redwood John Redwood Conservative, Wokingham

Will the Minister make sure, in the discussions with the devolved Governments, that the interests of England are also central to his considerations? We do not have a devolved Administration, but we have a very strong wish to see Brexit through, because we think there are a lot of gains from Brexit.

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

My right hon. Friend is of course right that people across the whole of the United Kingdom, including in England, voted for Brexit, but we should not forget the large numbers of people in Scotland, the almost 1 million people in Northern Ireland and those in Wales who also voted for Brexit.

Photo of David Linden David Linden Shadow SNP Spokesperson (Housing, Communities and Local Government)

I am most grateful. Earlier, the Minister talked about respecting the devolved Administrations and listening to what they were saying, so can he tell me what the Government have actually done with regard to the words in the 2016 document, “Scotland’s Place in Europe”?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I have answered that question many times. I am very happy to talk about many of the aspects of the political declaration that reflect some of the concerns raised in “Scotland’s Place in Europe”, but that is not a matter for this debate.

On the important question of child refugees, which the hon. Member for Bristol West spoke about at length and with commendable passion, this Government are fully committed both to the principle of family reunion and to supporting the most vulnerable children. Our policy has not changed. Although she said that she had heard no whisper of negotiations, I can confirm that the Home Secretary wrote to the Commission on 22 October to start negotiations with the European Union on future arrangements. We will also continue to reunite children with their families under the Dublin regulation during the implementation period. As my hon. Friend Tim Loughton made clear, there is very strong support on the Government Benches for the principle of family reunion.

Photo of John Howell John Howell Conservative, Henley

Perhaps I can help the Minister out. Is he aware that in 2017 the UK signed up to the Council of Europe’s action plan on protecting refugees and migrant children, which, among other things, enhances the integration of children into host societies, and that that commitment remains, regardless of what happens to these amendments?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

My hon. Friend makes a very important point. Of course we have to take action on this across a number of areas, but the right place to do that is not in this legislation. We do not need further reporting requirements such as would be required by amendment 4, unilateral measures such as those set out in amendment 26, or legally binding negotiating objectives.

In new clause 21, my right hon. Friend Mr Davis shows his admirable ambition for the UK’s independent trade policy enabled by leaving the European Union. We absolutely share those ambitions. I can assure my right hon. Friend, who was a privilege to work with, that the Government will be working in the national interest to kickstart the UK’s international trade policy in both bilateral and multilateral fora. I know that he has discussed this with the Secretary of State for Exiting the European Union. However, he will know, perhaps better than almost anyone else in this Chamber, how important it is that the Government do not have their hands tied in negotiation, so I would ask him not to press his amendment.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I thank my hon. Friend for that undertaking, but will he give me one other undertaking, which is that the United Kingdom will take its place in the World Trade Organisation immediately we leave the European Union, which will be, after all, on 1 February?

Photo of Robin Walker Robin Walker Parliamentary Under-Secretary (Scotland Office) (jointly with the Northern Ireland Office)

I hesitate to give that from the Dispatch Box because I am not a Trade Minister, but I am pretty sure that if my right hon. Friend asked a Trade Minister that question, the answer he would get is yes.

The Government have been given a mandate following the UK general election to get Brexit done. That is what this Bill aims to achieve. The withdrawal agreement and the protocol deliver a good deal for the United Kingdom and leave the door open to improving their operation in the Joint Committee to minimise disruption to businesses and individuals right across the United Kingdom, including in Northern Ireland. I urge hon. and right hon. Members to withdraw their amendments and progress this Bill so that we can get on with delivering on our commitments to the whole country. This will kick-start a bright new future for the people of all four nations of the United Kingdom.

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit)

It is a great pity that the time is restricted in this debate because there are so many amendments and so many people want to take part in it.

The amendments that we have tabled are designed to be positive—to ensure that the promises that the Government have made are honoured, as is the manifesto commitment that they have made in relation to Northern Ireland, which states:

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

All our amendments are intended to ensure that that promise is delivered on. I am sure the Minister will understand, given the experience of the withdrawal agreement, that we wish to see some of these things secured within the Bill rather than in the promises that are made here.

Photo of Tim Farron Tim Farron Liberal Democrat Lords Spokesperson (Communities and Local Government), Liberal Democrat Spokesperson (Housing, Communities and Local Government), Liberal Democrat Spokesperson (North of England) (Northern Powerhouse), Liberal Democrat Spokesperson (Food and Rural Affairs)

A lot of the DUP’s amendments are about trying to secure the future of access to UK markets for Northern Ireland farmers. That is massively important to farmers in Cumbria as well, vice versa across the Irish sea. Is the right hon. Gentleman aware that the Government have today announced at the Oxford farming conference that they are refusing to delay the phase-out of the basic payment scheme, which makes up 85% of the income of English livestock farmers, and that their doing so would massively undermine Britain’s farming economy and our ability to provide food security and protect our historic landscape?

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit) 2:30 pm, 8th January 2020

All these kinds of things ensure that people want to see these issues nailed down in the Bill, rather than hear the promises that are made.

Our amendments fall into three categories. I want to deal mostly with the first group, on unfettered access to the UK market. The second group aim to ensure proper representation for Northern Ireland on the Joint Committee and specialised committees, which will be very powerful and will be able to make decisions that have a dramatic impact on Northern Ireland. The third group aim to ensure that the Northern Ireland Assembly is consulted in accordance with the Belfast agreement.

The Minister has argued that the Bill guarantees unfettered access to the UK market—the protocol does not stop it, and the Bill facilitates it—and yet, when one reads clause 21, it is quite clear that none of these issues has been hammered down. Ministers “may” make regulations to facilitate access to the GB market. If disagreements arise in the Joint Committee or if the terms of the protocol require there to be checks between Northern Ireland and the rest of the United Kingdom, Ministers may well compromise and decide, “We’re not going to make regulations. We have to balance the arguments up. We may make regulations, but according to the Bill, it is not necessary for us to do so.”

The Bill simply refers to regulations

“facilitating the access to the market”.

That access to the market may require businesses in Northern Ireland to undertake a huge number of checks, with costly administration. The term “unfettered access” is not in the Bill, and despite the promises that the Minister has made, no one yet knows what unfettered access means. Our amendments are designed to ensure, first, that the Bill states that Ministers must bring forward regulations; secondly, that those regulations must ensure unfettered access to the GB market, which is the biggest market for the Northern Ireland economy; and thirdly, that that unfettered access is defined in the Bill.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

My right hon. Friend is making a powerful point about unfettered access to Great Britain for Northern Ireland, but of course a marketplace is somewhere where we buy and sell, and while he is considering west to east transit, east to west—Great Britain to Northern Ireland—will be a much greater concern, because that is where the EU will have the greatest interest.

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit)

That is why there must be guarantees on the face of the Bill that Ministers will ensure that regulations are designed in a way that does not stop trade, whether from east to west or west to east. The Bill singularly fails to do that at the moment, and our amendments are designed to ensure that it happens, for not only manufacturing but fishing.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

The Democratic Unionist party has tabled new clause 39 in relation to fishing. If one of my boats leaves Portavogie, goes out and catches a fish in the Irish sea and comes back into Portavogie, it owes tariffs, with administrative and bureaucratic costs. But if it goes and lands its catch in Scotland or England, it does not have to pay any charges whatsoever. The Government promised a golden dawn for the fishing sector when we left the EU. Quite clearly, boats in Northern Ireland—boats from Portavogie, Ardglass and Kilkeel—will not get that advantage. Is it not time that the Government considered the future of the fishing sector in particular and ensured that it has the golden dawn that the rest of the United Kingdom seems to have?

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit)

My hon. Friend illustrates once again the potential unforeseen consequences.

Our amendments have the support of all the political parties in Northern Ireland, such is the degree of concern about the impact on the Northern Ireland economy. We could support Labour’s amendment 1, but it does not go as far as we would like. We already know from the Government’s own assessment that there will be impacts on the Northern Ireland economy, and while amendment 1 asks for a picture at a particular time, new clause 55 asks for a moving picture over a period of time, with independent assessments on a year-to-year basis of the impact of the Northern Ireland protocol on the Northern Ireland economy. That is as important as the assessment proposed in amendment 1.

Photo of Claire Hanna Claire Hanna Social Democratic and Labour Party, Belfast South

I thank the right hon. Gentleman for giving way. I regret that in the two hours allocated to speak about the Northern Ireland protocol, he is the only representative of Northern Ireland who will be allowed to speak on the substantive amendments we have tabled on north-south co-operation, the environmental impact and democratic oversight. That will contribute to the very real feeling that Brexit, and this form of Brexit, is being forced on Northern Ireland, which has never given its consent.

People will appreciate that the right hon. Gentleman and I come from very different perspectives, but all the Northern Irish parties and all the business community have worked together on our common interests, because they are so vital to protect businesses and consumers, who cannot absorb the costs of this Brexit. Does he agree that if the Government mean anything they say about protecting Northern Ireland and the assurances they have given on unfettered access and non-tariff barriers, they should at a minimum accept new clause 55?

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit)

Yes. New clause 55 is very reasonable. It asks, first, for a 12-monthly assessment of the impact of the protocol on Northern Ireland; secondly, that if there is divergence in trade policy, the administrative costs of the impact should not be borne by the private sector in Northern Ireland; and thirdly, that it is done independently, to ensure that the true costs are not glossed over. It is a very reasonable new clause, adding to Labour’s amendment 1, and I hope that the Government will accept it. They want to give an assurance that they do not want there to be a detrimental impact on Northern Ireland. The only way we will know whether the terms of the protocol are having an impact on Northern Ireland is to make a regular assessment of the protocol, the regulations enforced as a result of it and the costs.

Our first set of amendments would require the Government to define unfettered access on the face of the Bill and would oblige Ministers and devolved Administrations to ensure that unfettered access. The second set is about representation on the Joint Committee. It will be a powerful Committee, and therefore it is important that there is Northern Ireland representation on it. The third set is on consultation with the Northern Ireland Assembly. I have already said to the Minister in an intervention

Two hours having elapsed since the commencement of proceedings, the debate was interrupted (Programme Order, 20 December 2019).

The Chair put forthwith the Question already proposed from the Chair (Standing Order No. 83D), That the amendment be made.

Question negatived.

The Chair then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Clauses 18 to 20 ordered to stand part of the Bill.