With this it will be convenient to discuss the following:
Amendment 26, page 1, line 3, at end insert—
“(za) requires Ministers of the Crown to set out a legal justification for altering the effect of the Northern Ireland Protocol in domestic law”
This is a paving amendment for NC8.
Amendment 31, page 1, line 4, leave out paragraphs (a) and (b).
Amendment 32, page 1, line 14, leave out from “Protocol” to end of line 15.
Amendment 5, page 1, line 15, at end insert—
“(e) provides powers to Ministers of the Crown that may be exercised only after good faith negotiations with the EU (through the mechanisms provided for in the Northern Ireland Protocol) have been exhausted and only with the approval of both Houses of Parliament and, where relevant, the consent of the Northern Ireland Assembly.”
This amendment would give primacy to a negotiated outcome between the UK and the EU and reflect the consent required by both Houses of Parliament and, where relevant, the Northern Ireland Assembly for powers conferred by the Act to be exercised.
Clause stand part.
Amendment 25, in clause 2, page 1, line 17, at end insert—
“(A1) This section is subject to section (Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly).”
This paving amendment is linked to NC7.
Clause 2 stand part.
Clause 3 stand part.
Amendment 6, in clause 15, page 8, line 47, at end insert—
“(1A) In this section “necessary” means the existence of a situation of grave and imminent peril that relates to one or more of the permitted purposes.”
This amendment defines the standard against which a Minister can exercise powers conferred by clause 15.
Amendment 14, page 8, line 47, at end insert—
“(1A) In this section “unpermitted consequence” means an outcome that would constitute a risk to or detrimental on—
(a) Strand Two of the Belfast Agreement including the North-South Ministerial Council, cooperation and action under the Council or consultation and agreements in all its formats, areas of cooperation and agreed implementation bodies;
(b) Strand Three of the Belfast Agreement, the British-Irish Council and cooperation, common policies or common actions on matters of mutual interest for relevant administrations including on issues, and in ways, referenced in that section of the Agreement;
(c) the single electricity market;
(d) Northern Ireland‘s access to the EU Single Market to the fullest extent permitted by the Protocol;
(e) continuing opportunities for institutions, economic operators and civic interests in Northern Ireland to access and participate in EU programmes and frameworks as permitted under and/or alongside the Protocol;
(f) Northern Ireland‘s access to trade deals between the EU and third countries to the fullest extent permitted by the Protocol;
(g) the productivity of businesses in Northern Ireland and the competitive marketability of goods produced there (through costs or complications associated with possible dual route regulatory compliances).”
This amendment provides that a Minister cannot exercise powers for the permitted purposes in Clause 15 in terms that could entail harmful impact on dimensions of the Good Friday Agreement and/or economic interests of Northern Ireland.
Amendment 27, page 8, line 47, at end insert—
“(1A) But subsection (1) is subject to section (Excluded provision: Parliamentary approval).”
This is a paving amendment for NC9.
Amendment 7, page 9, line 8, after “if” insert
“it does not cause one or more unpermitted consequence and if”.
Amendment 8, page 9, line 15, at end insert—
“(d) Article 18 (Democratic Consent in Northern Ireland)”.
This amendment adds Article 18 (Democratic Consent in Northern Ireland) of the Northern Ireland Protocol to the list of articles that a Minister of the Crown cannot exercise powers conferred by subsection (2) to provide cease to have effect in the United Kingdom to any extent.
Amendment 9, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) until and unless the Minister has laid a report before both Houses of Parliament setting out the Minister of the Crown’s assessment of the necessity to exercise the power for, or in connection with, one or more of the permitted purposes and to state the one or more permitted purposes in question.”
This amendment places a reporting obligation on a Minister exercising powers conferred by section 15 to detail an assessment of why the regulations are necessary and to state the permitted purpose(s) relevant to that assessment.
Amendment 10, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) before full consultation on proposed changes with, in particular—
(c) the Committee of representatives of the Human Rights Commission of Northern Ireland and Ireland, and
(d) persons whom the Minister considers appropriate as representatives of business, trade, economic interests and civic groups.”
Clause 15 stand part.
Amendment 40, in clause 16, page 9, line 19, leave out “the Minister considers appropriate” and insert “is necessary”.
This amendment changes the threshold for giving a Minister power to make regulations under this Clause. The threshold is amended to make it objective rather than subjective.
Clause 16 stand part.
New clause 1—Maintaining levels of environmental protection—
“(1) A Minister of the Crown must, before exercising the powers conferred by this Act, make a statement to the effect that in the Minister of the Crown’s view the exercise of the powers would not to any extent have the effect of reducing the level of environmental protection provided for by any existing environmental law.
(3) Any statement under this section must be published in such manner as the Minister of the Crown considers appropriate
(4) The Minister of the Crown must lay a copy of any statement under this section before each House of Parliament.”
This new clause would ensure that the powers proposed to be conferred by this Bill could be exercised only if in the relevant Minister’s view this would not undermine existing levels of environmental protection.
New clause 2—Environmental principles—
“No regulations may be made under this Act unless—
(b) paragraph 8 of Schedule 2 to the Environment Act 2021 is in force.”
This new clause would prevent the exercise of any powers proposed to be granted by the Bill until the Department’s policy statement on environmental principles has been finalised and Departments and Ministers are under a statutory duty to have due regard to it.
New clause 3—Meaning of “environmental protection”—
“In this Act “environmental protection” means any of the following—
(a) protection of the natural environment from the effects of human activity;
(b) protection of people from the effects of human activity on the environment;
(c) maintenance, restoration or enhancement of the natural environment;
(d) monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”
New clause 7—Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly—
“Section 2 of this Act has no effect unless it has been approved by a resolution of the Northern Ireland Assembly.”
This new clause would require the approval of the Northern Ireland Assembly before this Act could be used to limit the general implementation of the Northern Ireland Protocol.
New clause 8—Publication of legal advice—
“(1) The Prime Minister must lay before each House of Parliament a copy of the legal advice considered by the Government in respect to this Act which it received before the day of the First Reading in the House of Commons of the Bill for this Act.
(2) The Attorney General must lay before each House of Parliament the assessment made by Her Majesty’s Government of the doctrine of necessity in relation to the operation of the Northern Ireland Protocol prior to the First Reading in the House of Commons of the Bill for this Act.
(3) The Lord Chancellor must lay before each House of Parliament a report on to what extent the Bill for this Act was in accordance with Lord Chancellor‘s constitutional role in relation to the constitutional principle of the rule of law.”
This new clause requires the publication of the legal justification for the Bill for this Act.
New clause 9—Excluded provision: Parliamentary approval—
“(1) A Minister of the Crown may not make regulations that either bring into force any provision of this Act that makes any provision of the Protocol (or any related provision of the Withdrawal Agreement) excluded provision, or that make any such provision excluded provision, unless all three conditions in this section are met.
(2) The first condition in this section is that a Minister of the Crown has laid a statement before both Houses of Parliament setting out reasons—
(a) why, if no safeguard measures under Article 16 of the Protocol have been taken by the United Kingdom, the Minister of the Crown considers it appropriate to exclude a provision or provisions at that time rather than to do so only after the United Kingdom has taken such safeguard measures; and
(b) why and how, in the view of the Minister of the Crown, making the regulations is consistent with the international obligations of the United Kingdom.
(3) The second condition in this section is that the House of Commons has resolved, on a motion moved by a Minister of the Crown, to take note of the statement under subsection (2).
(4) The third condition in this section is that a motion for the House of Lords to take note of that statement has been tabled in the House of Lords by a Minister of the Crown and—
(a) the House of Lords has debated the motion, or
(b) the House of Lords has not concluded a debate on the motion before the end of the period of five Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a).”
This new clause would, except where the government had already adopted safeguard measures under Article 16, require Ministers to make a statement to the House as to why they thought it appropriate and lawful to treat provisions of the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement as excluded provisions; and to require a House of Commons vote, and a debate in the House of Lords, before those excluded provisions could be brought into force.
New clause 10—Condition prior to limitation of the Northern Ireland Protocol—
“(1) This section sets out the condition which must be satisfied before a provision of—
(a) the Northern Ireland Protocol, or
(b) any other part of the EU withdrawal agreement, is excluded provision.
(2) The condition must be either—
(a) the agreement condition (see subsection (3)), or
(b) the Article 16 condition (see subsection (4)).
(3) The agreement condition is that the United Kingdom and the EU have agreed following negotiations that the provision is excluded provision.
(4) The Article 16 condition is that—
(a) the United Kingdom is unilaterally taking appropriate safeguard measures, in accordance with Article 16 of the Northern Ireland Protocol,
(b) before taking those measures, the United Kingdom has followed the procedure set out in Annex 7 to the Protocol (which governs the taking of safeguard measures), and
(c) the safeguard measures being taken necessarily require that the provision is excluded provision.
(5) Where the condition is no longer satisfied, then the provision ceases to be excluded provision, and as a consequence any regulations made dealing with excluded provision lapse to the extent that they relate to provision which is no longer excluded provision.
(6) For the avoidance of doubt, the provisions of this Act remain subject to section 7A(2) of the European Union (Withdrawal) Act 2018, save where a provision of—
(a) the Northern Ireland Protocol, or
(b) any other part of the EU withdrawal agreement, is excluded provision which has satisfied the requirements set out in this section.”
This new clause is intended to prevent Ministers from deviating from the international agreement that is the NI Protocol unless this has either been agreed to between the UK and the EU, or the UK have followed the procedure set out in Article 16 of the Protocol for unilaterally taking safeguard measures.
Amendments 1 and 2, the latter of which amends clause 26, relate to the commencement and operationalisation of the provisions in the Bill. I have drafted them in this way because of the nature of the Bill itself. We will come to amendment 2 on day three, but amendment 1 paves the way for it, so it may be convenient if I set out the thinking behind both amendments.
As was debated at some length on Second Reading—I will not repeat everything that was said—this is an unusual and rather exceptional Bill, and not necessarily in a good way. If fully brought into effect, the Bill would lead to the United Kingdom departing unilaterally from an international agreement and therefore breaking its obligations under both customary international law and the Vienna convention on the law of treaties, which is a grave and profound step for any Government to take.
I recognise that there are circumstances in which that step can be taken, and the Government asserted on Second Reading that the operation of the Northern Ireland protocol gives rise, or potentially gives rise, to those circumstances. The essence of it, though, depends on applying a factual evidence base to a legal test. The legal test in this case is essentially the international customary law convention of necessity, which is now enshrined in article 25 of the articles on state responsibility, which were adopted by the International Law Commission in 2001 and are recognised by the UN General Assembly, by our Government and by the international community as an authoritative statement of the law. Article 25 sets out that necessity may be invoked if certain tests are met. The point of these amendments is to say that if the Government, or any Government, were to take that step, they should do so upon the most compelling grounds, so that the factual basis for their actions met the legal test. The reputational consequences, politically, internationally and legally, are very significant, so this should be done only when that is thoroughly tested and set before this House to be tested.
My hon. Friend is referring to certain tests of a reputational character, so I would be grateful if he would tell the Committee what those tests are right now.
I will be happy to talk about the essential tests of necessity, which are well recognised and well set out, as my hon. Friend knows. But the principle behind the amendment, which I will then go into the detail of, is precisely to say, “If you are invoking that doctrine, a most unusual thing to do, you ought to come to the House and set out the basis upon which you seek to do so.” The House would then have the chance to say whether or not we were prepared, on the basis of what the Government had put before us, to take the very exceptional step of putting ourselves in breach of a treaty obligation. That is the point.
On the question of necessity, does the hon. Gentleman accept, first, that we have dysfunctional government in Northern Ireland, and that the terms of the Belfast agreement have totally broken down and some have been removed? Secondly, does he accept that that has been brought about as a result not of actions by this Government, but by the protocol, the actions of the EU and the way in which it has insisted that it be applied? Thirdly, does he accept that the EU has not even tried to remedy this, because it has refused to negotiate, so necessity has been proved?
Let me return to that once I have set out the tests, because that is one issue that, with respect to the right hon. Gentleman—I do have much respect for him—the House ought to consider on the factual basis that is set before it. The first test is that departing from the treaty is the only means available to the state party
“to safeguard an essential interest against a grave and imminent peril”.
I quote from the case law and the text of the convention. Let us just break that down. On “an essential interest”, it might be that the Government could, at some point, make a case to say that the disruption in Northern Ireland, be it economic, societal or political, gets to a stage where it could threaten an essential interest of the UK. I concede that, but I have not, as yet, seen the evidence to justify that.
Forgive me, but my hon. Friend asked me to set out the tests and I am doing so. The second test is the necessity to safeguard an essential interest against a “grave and imminent peril”. The Bingham Centre for the Rule of Law has helpfully provided a briefing, setting out that that imports something that very grave indeed—it is a high test—with a degree of urgency to the matter. A possible, contingent or proximate risk does not come within the test of being a “grave and imminent peril”, and that is a risk with the way in which the Bill is drafted at the moment. Again, evidence might be produced to show that it does apply, and the Government might be able to make their case—they ought to do so.
May I set out the tests, as I was asked to?
The Government need to show that this is also the only means whereby they can safeguard the interest in question. The difficulty they potentially have there is that article 13 of the protocol makes provision for a renegotiation, which most of us would think is the right route to solve these problems, and that in the event of emergency measures, which one might think might be closer to meeting the test of an “imminent peril”, we would then use the unilateral safeguarding provisions under article 16. It might be difficult to argue that necessity is met if we have not attempted and cannot demonstrate that we have attempted those routes first, before moving unilaterally to breaching the protocol.
My hon. Friend makes an interesting point about necessity, and one that has exercised my mind. The Northern Ireland Court of Appeal said that the Acts of Union had been “subjugated” by the protocol. Therefore, what gravity and what imperative does he attach to such an existential threat to the Union?
It does not avail us in relation to the international law test, and the difficulty with this Bill is that it is seeking to disapply parts of the protocol in domestic law, but in a way that breaches an international obligation. In any event, could it be said that all available means had been taken to rectify that potential difficulty? That comes back to my point that the Government—any Government—should have to come to the House and set that out.
I admire the elegant way in which my hon. Friend has set out the three tests. However, the Joint Committee has been working at this for a long time and it has failed to make progress. At what stage, and in what circumstances, does he envisage that we could proceed on the basis of the provision we are debating at the moment? It seems to me that we have exhausted the possibilities and we are in the position of having to do this now to defend the Good Friday agreement. So why on earth is it necessary to have an amendment that would put another hurdle in the way of Ministers’ trying to resolve this?
With respect, I do not think the amendment would put another hurdle in the way, because it would not prevent the Bill from proceeding and it would not prevent what I know my right hon. Friend wants to see, which is a negotiated settlement. By far the best thing, which everyone in this Committee wants, is for the protocol to be renegotiated. I concede at once that the protocol is not working properly or as it was intended. I also readily concede that part of that is due to a rather intransigent stance taken by the European Commission and its refusal, for example, to give greater flexibility to Vice-President Šefčovič in his negotiating mandate. This is not an issue where all the fault is on one side at all. The EU has not acted wisely or helpfully in these matters, but that is not the same as saying that the international law test is therefore automatically made out as of now.
I think that would be fine at this stage. My hon. Friend refers to “grave and imminent peril”. Does he not agree that at the heart of this entire problem lies the issue of the democratic deficit? I will not go into it now, but I will explain later that I think this is about the manner in which legislation is pouring into Northern Ireland from every side, like a tsunami, as we said in our European Scrutiny Committee report; we talked about starting with a small number of cars and turning into a motorway. The bottom line is that that is a grave and imminent peril, because of the constant and perpetual legislation, week in, week out, with no time or opportunity for people in Northern Ireland to say anything at any time.
The difficulty that my hon. Friend has is that that is an assertion. I am not sure that, as yet, we have had set out to the House the evidence base that the Government say they have and are working on. I referred the Foreign Secretary to that point on Second Reading, asking when we would see the evidence base that will set out the Government’s case and their reasoning.
My hon. Friend will recall that Sammy Wilson raised the issue of the necessity standard applying in a context where a state has not contributed to that state of necessity. Does he feel that that provision has been activated or in some sense triggered by the present situation?
That is, of course, the fourth limb of the five-limb tests—that an essential interest of the EU member states should not be imperilled. I have to say that I do not think an essential interest is imperilled by this Bill, because it is clear that the risk of leakage into the EU single market has been minimal, even with the way the protocol is operating—or partially operating—now. That is probably the strongest ground that the Government have. But there is then the argument as to whether the party that invokes the doctrine of necessity has in some way contributed to the situation. I think that is more finely balanced, in fairness. I have seen the briefing from the Bingham Centre that suggests that that test is not met either. I am more prepared to give the Government some slack in that regard, but we need the evidence for that as well. After all, at the end of the day, the Government agreed the protocol—not long ago, in 2020—and did so on the basis of intending to operate it in good faith. That, of course, is a rather important reputation that this country has. My right hon. Friend is right to flag up those stages, but even before we get to them, I am not at all sure that we yet have the evidence before the House to justify the provision.
Let me return to the point made by my right hon. Friend Dr Murrison about why the amendment is necessary. As it stands, the Bill, as well as potentially setting up the risk of a breach of international obligation by directly disapplying certain areas of the protocol immediately, gives Ministers wide powers to go further than that, and effectively to create new law and change legislation through what has been described as one of the grandmothers of all Henry VIII clauses. Those are exceptionally wide delegated powers. I mentioned the potential reputational risk of unilaterally departing from an international agreement that we have entered into in good faith, without the most compelling grounds. That is not something, in my respectful submission to the Committee, that should be left to Ministers acting under delegated powers.
The consequence is of such importance that the decision should come back to the House, and that need not take long; my amendment 2 to clause 26 sets out the procedure, which would mean the process could be dealt with swiftly, by Ministers coming to the House, laying a motion to approve the relevant matters and setting out their case. If the case were made out, I would happily vote for it. If we had evidence that political stability and a functioning Executive would return to Northern Ireland—that great objective—that might persuade me, and many others, no doubt, to take a greater risk than might otherwise be the case, but as yet we do not have the evidence that that would happen, so at the moment we are in danger of giving Ministers a significant blank cheque on a matter that relates to our political and legal reputational standing in the world. That is my objection to the Bill in its current form. I do not rule out the possibility of the Government using the Bill, but they should come back to the House and make their case. That is the essence of my argument.
I thank the hon. Gentleman for the knowledge and experience that he brings to the House, which we all very much appreciate. Does he agree with me, and probably others on the Opposition Benches, that Northern Ireland has been used as a bartering tool between the EU and the UK in trying to sort out some of the problems? Examples include whenever the vaccine was stopped for us and was then made available, all the tariffs, and regulations and red tape. All those things show that the process quite clearly is not working. Northern Ireland does not want to be a bartering tool between the UK and the EU; we want to be part of the UK. Does the hon. Gentleman understand why these issues are so important to us? I think he does, but I would like to hear his opinion.
I do understand that, which is why I have made it clear from the beginning that I am as much in favour of changes to the protocol as anyone else. Of course, the protocol had provisions written into it to enable those changes to take place, and that is what we would all want to see.
Let us be blunt: there will be a change of Prime Minister soon, and a change of personnel under those circumstances may—I hope it does—make negotiations easier. There has been a degree of strain in relations with the EU and the heads of some major Governments in the European Union. I very much hope that one consequence of what has happened is that it may be easier to rebuild and repair relationships and trust, and that could lead to a negotiated change, which would mean that this legislation was never necessary. Nobody would be more delighted than I—or, I suspect, anyone else in this House, including those on the Treasury Bench—if that were to be the case, but if the Bill is taken forward, we need proper safeguards to ensure proper parliamentary and democratic oversight of the way it is taken into force.
The hon. Gentleman is making a powerful speech. Of course, Henry VIII only had six wives; this Bill has 19 delegated powers within 26 clauses. Does he agree that if we set a precedent that such legislation could be written here, it may be tempting for some Ministers to expand that precedent to other forms of legislation, so it is important that we confine whenever delegated powers are used—not just in this legislation, but to ensure that we uphold the primacy of this Chamber?
The hon. Lady makes a fair point. Those of us who have served as Ministers know that, frankly, all Governments use Henry VIII powers. We all tend to criticise them when we are in opposition and use them a bit when we are in government, if the truth be known. But the reality is that there are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together, as far as I can see. The powers are almost Shakespearean or Wagnerian in their scope and breadth. That is the problem, and it is why we need some greater hold on how they are used.
Stella Creasy raised another important point. Very wide Henry VIII powers have been criticised by the Hansard Society and in the other place—and for good reason, because part of the whole objective of what we have done is recent years has been to restore parliamentary sovereignty. The danger is that that becomes restoring power to the Executive, rather than to Parliament. I say to my hon. Friends on the Conservative Benches, we all know that Governments come and go, and once we set a precedent that gives sweeping powers to a Government with whom we may happen to agree, inevitably—as night follows day—there will be a day when a Government with whom we do not agree come in and use those powers in a way to which we might wish to object; it is better not to set too wide a precedent, anyway.
There is another difficulty with the powers. Clause 15 gives Ministers powers to add to excluded provisions. Not only is that extremely wide, but the clause refers to excluded provisions for “a permitted purpose”, without any further definition. In other respects, there is a test where the Minister may take any such measures in relation to the protocol as the Minister “considers appropriate”. That is an extraordinarily low test. Essentially, it lacks any kind of objectivity; it is a purely subjective test. Giving Ministers delegated powers to act in a purely subjective manner without requiring them to demonstrate the evidential basis on which they exercise those powers is a dangerous and difficult precedent to set.
In fairness, this Bill could not have been foreseen, but therefore could not be put in my party’s manifesto for the general election. It will be interesting to see—I know Ministers are well aware of this point—precisely what view the other place, which is anxious to examine the extent of delegated powers, takes on the matter. It might therefore be in the Government’s interest to progress the Bill to think about ways in which we can get a better balance, and ensure that there is a proper and proportionate hold on the powers.
I have covered the essence of what I needed to say. It comes down to whether the Government have a case—without going into the rest of the legal argument, I concede that they might be able to make that case—and whether that case might have grounds in law. I would say to my clients in the old days, “Just because it’s lawful doesn’t mean it’s a wise thing to do; just because you’ve got a case that you might argue, it might not necessarily be a good idea for you to go and argue it.” Sometimes litigation is best avoided and sometimes sweeping legislation is best avoided, if it is possible to find a better route.
It seems to me that if need be, it would not be unreasonable for the Government to come back to the House and make their case in relation to the specific items where they seek to disapply an international treaty. If they have a good enough case, the House will support them and they can get on with it; it can be done quickly and need not cause undue delay. That would at least ensure that we have acted within a reasonable and proportionate legal framework. At the same time, we could demonstrate that we are seeking, in good faith, to renegotiate. If we cannot do that, I suggest it would be prudent at the very least to invoke the article 16 safeguard provisions, either before or perhaps in parallel with those matters; we could show again that we have acted in good faith to do all that we could within the framework that exists, which is one of the important parts of a necessity test.
I hope that the Government will take on board those arguments, because they are pretty fundamental to the Bill itself and would not obstruct the objectives of the Bill—that is, getting the protocol changed or getting devolved government working in Northern Ireland, both of which we wish to see—but would enable them in a proportionate and constitutionally sound manner.
Just a gentle reminder that quite a few hon. and right hon. Members are wishing to catch my eye. I cannot impose a time limit because we are in Committee stage, but Members may like to bear that in mind.
It is a pleasure to follow Sir Robert Neill. We have become good friends since both serving together on the UK delegation to the Parliamentary Assembly of the Council of Europe, and I hold him in the highest of respect.
On behalf of my colleagues, I pay tribute to the former Secretary of State, Brandon Lewis, who is in his place, for the work that he has done in bringing the Bill to this stage, and for the work that he did during his tenure as Secretary of State. He developed a good understanding of the difficulties in Northern Ireland with the protocol and the other issues. I know that it is his desire to move Northern Ireland to the next stage of the peace process to move towards reconciliation, but he recognised that there was a need to deal with these fundamental issues before we could get to that point. I thank him for the work that he has done in that regard. On behalf of my right hon. and hon. Friends, I extend our grateful appreciation.
I also welcome the new Secretary of State, Shailesh Vara, to his place. I got to know him well when he was a Minister in the Northern Ireland Office and we look forward to working with him in the weeks ahead on the issues that confront us at this time.
I want to respond to the points that have been made in relation to amendment 1 and related amendments, to deal with the question of necessity in particular and the immediacy of the risk that has given rise to the Government introducing this legislation. I understand the points that have been made cogently here. Therefore, it is important, representing one element of the political community in Northern Ireland, to outline why we believe the Bill is necessary. We counsel against impeding the ability of the Government to press forward with this legislation.
On the risk, I echo the comments made by Robin Millar. For us as Unionists, there is a risk to the Union in relation to how the protocol is being applied in Northern Ireland. Both the High Court and the Court of Appeal in Northern Ireland have stated that the protocol subjugates article 6 of the Act of Union. That article confers on Northern Ireland citizens the right to trade freely within their own country. It states that there shall be no barrier to trade between the constituent parts of the United Kingdom. No one could reasonably argue that the protocol does not put in place barriers to trade. It most certainly does and I hear that every day from my constituents, whether they are consumers or businesses, and the difficulties that they are facing in trading with the rest of the United Kingdom.
Those difficulties have led to political instability in Northern Ireland. They have had an economic impact in Northern Ireland and I would argue strongly that there is the potential for that to lead to societal problems. We on these Benches have worked hard to ensure that those problems have not arisen. When people have taken to the streets and engaged in violence, we have worked in local communities to prevent a repetition of that. That has been the case across the community. It does not mean, though, that there are not strong feelings, particularly within the Unionist community, about what this protocol means not only for trade, which is important, but for their identity and for their place in the Union. As we have seen over the years in Northern Ireland, when people feel that their identity is threatened, when they feel that their place in the United Kingdom is being undermined, that can lead to societal problems.
The hon. Member for Bromley and Chislehurst has rightly argued that, from his perspective, he is looking to see the immediacy of the risk, but I say to him that it is there, it is very real and I ask him to take on trust from my contacts within the Unionist community that it is bubbling beneath the surface and we have worked hard to try to ensure that that does not emerge.
The right hon. Member has stated that the Union is at risk because of the protocol. I know that he is no big supporter of the Good Friday agreement, but does he not accept that very clearly written into that agreement is the principle of consent? That basically means that, no matter how much I want it, we cannot change the constitutional position of Northern Ireland until the people of Northern Ireland and the people of the Republic of Ireland vote for it.
I will come to the Good Friday agreement in my remarks, but I simply say to the hon. Member that there is a difference of view as to how we interpret what is required in terms of consent. Lord Trimble, as one of the key negotiators of the Belfast agreement, has stated very clearly that the principle of consent does not just apply to the final question as to whether Northern Ireland should remain part of the United Kingdom. The term “constitutional status” extends to these circumstances, where Northern Ireland’s constitutional relationship with the rest of the United Kingdom has been changed by virtue of the subjugation of the Acts of Union.
The right hon. Gentleman knows with what affection I regard him, his party and Northern Ireland, having had the privilege of being Advocate General for Northern Ireland. What he is saying is a very good case for triggering article 16, which was the entire purpose of the inclusion of article 16 in the protocol. It is not necessarily a good reason, however, for changing the entire basis of the treaty, including writing out the jurisdiction of the Court of Justice of the European Union, and so on. How do we get from a position where we have societal impacts, with which I am perfectly willing to agree, to a position where we virtually rewrite the terms of a treaty that we solemnly signed only two and a half years ago?
I have great respect for the right hon. and learned Member, and I know of his affection for Northern Ireland. I think back to those very difficult and challenging days when this House was dealing with the pre-departure discussions about the laws that would have to be put in place around the treaty to leave the European Union. I thank him for the time that he took to understand the situation in regard to Northern Ireland.
I would say two things in response to the point that the right hon. and learned Member has, understandably, made. First, the Command Paper published by the UK Government one year ago last July set out the basis on which they believed that the conditions had been met for article 16 to be triggered. We have been very patient. We have waited and waited, and we allowed time for the negotiations with the European Union to go forward in the hope that the EU would show more flexibility. I do not doubt the integrity of Maroš Šefčovič as the lead negotiator, but the difficulty is that his negotiating remit is so constrained that his ability to deliver the change that is required to meet the need—to resolve the difficulties created by the protocol—is so limited that in the absence of a change of his remit, I do not think those negotiations will get anywhere.
Article 16 and the triggering thereof is a temporary measure; it is not a permanent solution. What I need, what Northern Ireland needs and, especially, what business in Northern Ireland needs is certainty. That is why we believe that the Government are right to bring forward proposals for a longer-term solution, and not just to go for the temporary fix—the sticking plaster—of article 16. That will create more uncertainty rather than giving us certainty, and it is certainty that we are looking for. That is why I think that what the Government have done is right in the circumstances.
I think my right hon. Friend responded fairly to the former Attorney General, Sir Geoffrey Cox, who has been a good friend to Northern Ireland over many years and knows our opposition not only to this protocol from the start, but to preceding arrangements that were proposed. Yet here we stand, with exactly the problems that we foresaw—the problems experienced by businesses, communities and consumers throughout Northern Ireland and the impact to our political arrangements—and still we hear every objection and reason why Government should not move.
Many people who now ask whether article 16 should be triggered were aghast at the notion it should be triggered a year ago. The right hon. and learned Gentleman is shaking his head, and I do not include him in that number. But at every stage, when Government have accepted, heard and acknowledged the crisis and the difficulty we have had with political and economic instability within our Province, there has been a good reason not to act, and still we remain without a solution. Does my right hon. Friend agree that now is the time to get on and provide the solution, not for us, but for everyone in Northern Ireland?
I agree entirely with my hon. Friend, and that brings me to the heart of the issue for us—the threat to the Belfast agreement posed by the current situation.
On the point about consent—we did get slightly distracted—I totally and absolutely disagree with the right hon. Gentleman and Lord Trimble on how they say consent works. It is not an elastic principle; it is about one thing, the constitutional position of Northern Ireland. If it is elastic, however, does it apply to Brexit, since that was a constitutional rupture for the people of Northern Ireland, and the people of Northern Ireland voted against it? If it applies to the protocol, why does it not apply to Brexit?
Brexit did not change the constitutional status of Northern Ireland as part of the United Kingdom. The protocol did that. The referendum on Brexit was a United Kingdom-wide referendum. The hon. Gentleman and I lead parties that have the word “Democratic” in their names; I accepted the democratic decision of the people of the United Kingdom to leave the European Union, and I have fought ever since for the basis of that departure to ensure that Northern Ireland’s place within the United Kingdom is respected.
That is at the heart of article 1 of the Belfast agreement. All parties to that agreement, including the Irish Government, accepted that Northern Ireland remains part of the United Kingdom. Indeed, the Irish Government changed articles 2 and 3 of the Irish constitution to reflect the principle of consent and the reality that Northern Ireland remains part of the United Kingdom. When I voted for Brexit, I certainly never voted to change the constitutional status of Northern Ireland, and that is not something the people of Northern Ireland have been asked to do.
Does my right hon. Friend accept that Brexit was all about the United Kingdom’s relationship with Europe, not about relationships within the United Kingdom, and therefore it did not fall within the scope of the Belfast agreement? In response to the claim that article 16 is the way forward, would he accept, given the nature of the damage the protocol has caused, that even if article 16 were triggered, it is quite clear that any article 16 measures would have to be restricted in their scope and duration? We do not need a sticking-plaster; the problems that have been revealed with the protocol require long-term change. It should be changed by legislation, not by some temporary measure such as article 16 would allow.
My right hon. Friend makes a strong point. To be clear, the greater issue for us as Unionists is our place within the United Kingdom and our ability to trade freely within that United Kingdom in accordance with our rights under the Acts of Union. That is fundamental to us as Unionists. I understand why Stephen Farry will argue strongly that the protocol should be retained. I have heard their arguments for that, but let us be clear: the Belfast agreement respects the right of Unionists to adhere to their position and to support and uphold their position as part of the United Kingdom. It represents for us a fundamental change that that is now threatened and, unless that is corrected and resolved, it means that our confidence in the agreement itself and its ability to protect our place in the United Kingdom is fundamentally undermined.
I think we all agree on the principle of consent as set out in that agreement, but does the right hon. Gentleman recognise that the one-sided approach taken by the Government and by his party is eroding support for the Union inside Northern Ireland and that, by contrast, finding a workable solution around the protocol would provide a soft landing, which might create a much longer perspective on the maintenance of the Union itself?
The hon. Gentleman started out this journey as someone whose party advocated that the protocol should be rigorously implemented. Now he has shifted to saying that it should be rigorously retained. He cannot say that the protocol is creating problems and then not come up with viable solutions to deal with that. I have heard his solutions, but they do not have cross-community support in Northern Ireland. What we are looking to do—I believe that what the Government have proposed is capable of achieving this—is to resolve the issue in a way that meets the needs of everyone.
The Government’s proposals meet the needs of the United Kingdom, so that the integrity of our Union and of our internal market is respected. They meet the needs of the European Union, in so far as it takes measures to protect the integrity of the EU single market, to ensure that goods at risk of entering the EU are dealt with properly by this country in a way that meets its requirements. The proposals enable the restoration of the political institutions in Northern Ireland so that the Belfast agreement can continue to be the basis upon which we move forward there.
I believe that what the Government are proposing is not one-sided, but reasonable, measured and fair. There is so much focus on how the Government are doing this that we have lost sight of what they propose to do. Any objective assessment of the Government’s proposals can only conclude that they are reasonable and fair in all the circumstances and that their overriding objective is to protect the very delicate progress that has been made in Northern Ireland under the Belfast agreement.
In relation to agreement, and this is important, we have heard much about the need to ensure that the UK maintains its honour and its international reputation. However, I remind Members that the Belfast agreement is itself an international agreement, and the protocol undermines that agreement. It is an agreement whose co-signatories are the Irish and UK Governments. There was an international agreement attached to the Belfast agreement that was co-signed by those two Governments, making it an international agreement of international standing—indeed, one that has been approved in many international bodies across the globe. Therefore the protocol, in undermining that agreement, is harming an international agreement, and that needs to be addressed.
The basis on which the political institutions were restored in Northern Ireland at the beginning of 2020, after a three-year period in which Sinn Féin left Northern Ireland without a functioning Government, was the New Decade, New Approach agreement. Again, that was an agreement concluded by and involving the British and Irish Governments. Julian Smith, the former Secretary of State for Northern Ireland who was instrumental in bringing about that agreement, is in his place this afternoon. I remind the Committee that New Decade, New Approach—the basis on which my party committed to re-enter, and did indeed re-enter, government in Northern Ireland—included a commitment from the Government that they would protect Northern Ireland’s place within the UK internal market. That commitment was fundamental to my party deciding to re-enter government on the basis of that agreement, but it has not yet been delivered. Northern Ireland’s place within the UK internal market has not been properly restored. It is damaged by the protocol. It is impeded by the protocol. That is why in February this year I reluctantly took the decision to withdraw the First Minister from the Executive on the basis that other elements of New Decade, New Approach were being delivered, but the most fundamental element for the Unionist community was not being delivered. On that basis, we fought an Assembly election. My party obtained a mandate for the position that it has taken, and that mandate remains intact.
Let me respond specifically to the question raised by the hon. Member for Bromley and Chislehurst about whether this Bill will lead to the restoration of devolved government in Northern Ireland. I believe that the Bill, if enacted, will help us to achieve that objective. I am absolutely convinced of that. My party has stated clearly that we believe that if the Bill becomes law, that provides the basis for restoring the political institutions in Northern Ireland, including the Executive. I have already committed to leave this place and to return to Stormont as Deputy First Minister as part of that Executive. I therefore have a personal commitment to the restoration of the political institutions, as does my party.
It is not just the internal institutions in Northern Ireland that are fractured at the moment. Let us not forget the relationships. My right hon. Friend Sammy Wilson referred to that. At the heart of the Belfast agreement are three sets of relationships. There are those internal to Northern Ireland, which are fractured by the protocol. There is the relationship between Northern Ireland and the Republic of Ireland in the form of the North South Ministerial Council, which is not meeting—not functioning—at the moment because relationships have broken down due to the protocol. There is the east-west relationship between the United Kingdom and the Republic of Ireland, which, as has been said in this House and elsewhere on a number of occasions, is at its lowest ebb for many years. So the protocol has harmed those relationships that are absolutely crucial to the success of the Belfast agreement. If we are to restore them to a better place, this Bill has the potential to help us to do that.
I would therefore answer the hon. Member for Bromley and Chislehurst in the affirmative. It is my belief—if there is any doubt about this, let me be absolutely clear—that this Bill, if enacted, provides the basis for the restoration of the political institutions in Northern Ireland and the other institutions. Of course we want to see the regulations that will be brought forward as a result of this enabling legislation, because those regulations will provide the solutions. I urge the Government to publish the draft regulations as soon as they can so that we can see what those solutions look like. That will also help to build confidence and provide the basis for restoring the political institutions.
I respect what the right hon. Gentleman is saying. He referred to the importance of an objective test. Does he agree that that may not be enough for proper parliamentary scrutiny, which we must have for the regulations, and that before the Bill completes its passage in this House, the Government ought to produce the evidence base that might support the ground that he asserts—that the necessity test is met? That might make it easier for many people to accept the provisions of the Bill, rather than giving a blank cheque, which is the concern, as I am sure he will understand. That might make the passage of the Bill through the other place easier, because at the moment enactment could be a long way off. If the situation in Northern Ireland is so grave, would we wait until enactment or some other measure?
Of course that is a matter for the Government, but I am all in favour of proper scrutiny of this Bill. That is why we welcome the fact that the Committee stage will take place over three days on the Floor of the House. I commend the Government for the way in which they have handled this. They are not running away from scrutiny. I invite the hon. Member to come to Northern Ireland, when he has time, and I will gladly introduce him to the businesses that are being harmed by the protocol. He can meet consumers who find real difficulties in purchasing goods from businesses in Great Britain. Indeed, some businesses in Great Britain—many of them, now in the hundreds—have decided no longer to trade with Northern Ireland, because it is all too difficult.
On Second Reading, the right hon. Gentleman and I had an exchange on the democratic deficit. There is also the question of scrutiny. In terms of the political institutions and the voters of Northern Ireland, the situation is perfectly clear, as was indicated in the McAllister case where the judge used the word “subjugation”. The fact is that people—the voters—in Northern Ireland are being subjugated to the laws of the European Union in a manner that is inconsistent with our leaving the European Union. Does he not therefore agree that that democratic deficit is absolutely crystal clear and does not require evidence because it is so self-evident coram populo?
The right hon. Gentleman is talking about businesses and consumers who have been affected. Earlier on, his argument for this Bill was that it would somehow give the certainty that he says the protocol does not give to people. Can he, hand on heart, argue that he knows everything that will happen if the Government proceed with this legislation? Can he really tell his constituents that he can give them certainty in the chaos that we are talking about, which did not start with the protocol but started with Brexit? Where is his proof that this Bill provides certainty—the solution that he is missing—in comparison with what they know now? Better the devil!
I am many things, but I am not a prophet, so I cannot say with certainty that this will happen or that will happen. But I can point to this: when the protocol, as part of the withdrawal agreement, was before this House, we warned then of the consequences of the protocol. We are not late to the table in recognising the real difficulties that the protocol would cause in Northern Ireland for businesses, consumers, and our place in the United Kingdom. I am certain that the proposals put forward by the Government in this Bill are reasonable, fair and proportionate, and will offer what business needs to continue trading within the United Kingdom and with the European Union. That is the kind of certainty that businesses are looking for.
Let me turn to the point raised by Sir William Cash, for whom I have great respect. This is very important. When the Government, and indeed those who supported Brexit, argued very strongly the case for the United Kingdom to leave the European Union, it was about taking back control—control of our borders, our money and our laws. Yet in the part of the United Kingdom that I have had the honour and privilege of representing in this House for 25 years now, this does not apply. As he said, many regulations applying to business in Northern Ireland, and how we trade with the rest of our own country, are now being made in Brussels without any democratic input whatsoever from anyone in Northern Ireland—not from me and my colleagues as Members of Parliament, or from Members of the Legislative Assembly at Stormont.
There is a democratic deficit that means that we are having laws imposed on us over which we have no say. That is not taking back control in our part of the United Kingdom. In terms of money, our rules on VAT and on state aid, for example, are determined not by this Government—not by this place—but by the European Union. We have no input into how our VAT rules are drawn up or into the rules on state aid, which apply to support for businesses in Northern Ireland We do not have complete control of our money in Northern Ireland and we are losing out because of those restrictions. It is therefore very important for us that we get this right. I believe, as I said, that what the Government have proposed is fair and reasonable, and will restore Northern Ireland’s place fully within the UK single market.
Obviously the loss of input in being at the top table is a feature of Brexit. It is a feature of all countries that are members of the EEA single market, but not of the EU. Norway, Iceland and others do not get to make those decisions. Is the right hon. Gentleman suggesting that he would prefer it if Northern Ireland were completely out of the single market? Being in the single market is the privilege that Northern Ireland has. It is helping its economy and it is supported by all business leaders. It was what Scotland asked for and was refused.
We are not Norway; we are Northern Ireland. Northern Ireland is not in the single market, and let us be clear about that. The protocol requires us to align our regulations on manufacturing of goods with those of the EU single market. We are out of the single market and we are out of the EU’s customs union, but we are required to abide by its rules. That is the position in which we find ourselves, and I say to the hon. Lady that the solution the Government are offering will enable businesses to continue trading with the European Union in a way that is helpful and beneficial for cross-border trade, for my farmers and for our agrifood processing industry. Things will still work for Northern Ireland, but the Bill will also ensure that we can trade freely with the rest of the United Kingdom, which we believe is fundamental to our rights as part of the Union.
In conclusion, we believe that this Bill has the potential to move us forward in resolving the problems created by the protocol. The regulations that will be put in place when this Bill is enacted are fundamentally important to delivering those solutions. The Bill will address the democratic deficit and mean that once again, all the United Kingdom has a say in how our money, our laws and our borders are controlled. Finally, it will enable us to restore political stability in Northern Ireland by seeing the political institutions back up and running again and protecting the Belfast agreement and its successor agreements, including St Andrews and New Decade, New Approach, which was the basis upon which we re-entered government. We will not re-enter government until we are clear and sure that what the Government are taking forward will deliver what we need for Northern Ireland.
I begin by thanking Members across the Chamber for their participation on Second Reading. I want to allow for thorough debate of the Bill in Committee, and to facilitate that, and because of the plethora of amendments and the number of people who wish to speak, I might not give way as much as I usually do. I want to facilitate the number of amendments and allow people to speak for themselves. I therefore want to make some good progress, because I am duty-bound to go through a large number of amendments in this opening speech.
As we have progressed to Committee—the House will know that the Government have generously allowed no fewer than 18 hours of debate time—it is necessary to reiterate some key points that go to the heart of why the Government have introduced this Bill. The Northern Ireland protocol, as the Committee knows, was agreed with the very best of intentions, but it is causing real problems, as has already been accepted across the House, for people and businesses in Northern Ireland, including trade disruption and diversion, significant costs and bureaucracy for traders. This legislation will fix the practical problems that the protocol has created in Northern Ireland. It will enable us to avoid a hard border, to protect the integrity of the United Kingdom and to safeguard the European Union single market.
Turning to the clauses under scrutiny today, clause 1 summarises the effect of the Bill and gives vital clarity on how it will function. The clause sets out three things: first, that the Bill provides clarity that the specific areas of the Northern Ireland protocol that are causing problems would no longer apply in domestic law; secondly, that it clarifies how other legislation, such as the Acts of Union, are affected by the Bill; and thirdly, that it provides vital clarity on the operation of the Bill and its position in relation to other domestic law.
Clause 2 underpins the essential functioning of the Bill by confirming that any part of the protocol or withdrawal agreement that has been excluded by the provisions of this Bill has no effect in domestic law. That is necessary and technical, but it is vital for the Bill to function, as without that provision, there may be a lack of clarity as to whether the existing protocol and EU law regime or the revised operation of the protocol has effect. Where this Bill or its powers do not exclude provision in the protocol or withdrawal agreement, that provision will continue to have domestic effect via the European Union (Withdrawal) Act 2018, as it does today.
Clause 3 supplements clause 2 and will remove the requirement for courts of law to interpret relevant domestic law in line with the withdrawal agreement, insofar as that would lead to an interpretation of domestic law that is incompatible with this Bill and any regulations subsequently made under it. This is done by the amendment of the relevant provision of the 2018 Act, which requires courts to interpret relevant separation agreement law—that is, domestic law—consistently with the withdrawal agreement. Instead, it is made clear that no such interpretation should be made, if that would be incompatible with the provisions of the Bill or any regulations made under it. That is vital to provide certainty as to how the regime should operate, ensuring that where the protocol no longer applies, courts are not required to interpret legislation in line with it.
Turning to the other two clauses we are considering today, clause 15 ensures that the Bill can fully meet its objectives by granting powers to make clear where additional elements of the protocol and withdrawal agreement are excluded, subject to carefully defined purposes. This means that Ministers can make regulations to adjust how the Bill interacts with the protocol and to reflect which elements are disapplied. To ensure that is done only if necessary to meet the Bill’s objectives, the power is limited to a list of specified purposes set out in subsection (1), such as to ensure the effective flow of trade between Northern Ireland and another part of the United Kingdom. Subsection (3) provides that the power cannot be used to terminate the effect of the provisions of the protocol that relate to the rights of individuals, the common travel area and other areas of north-south co-operation.
Those are not the only areas of the protocol left unchanged by the Bill. For example, the articles of the protocol relating to the single electricity market are not affected. They are specifically defined here to provide particular reassurance about those sensitive areas. Clause 15 is important to ensure that the Bill is flexible enough to tackle any unintended consequences or future issues that may arise that threaten the objectives of the Bill, particularly considering the importance of the issues that the Bill is intended to address.
I will give way in due course, if I may, because I will come on to the specific amendments, and it might be more prudent to give way at those points to the individual Members.
Clause 16 supports the functioning of the Bill by granting the power to make new arrangements in any cases where it becomes necessary to use the powers contained in clause 15. That means that new law can be made via regulations, if appropriate to do so, in relation to any element of the protocol or withdrawal agreement that has become excluded provision as provided for in the regulations made under clause 15. Clause 16 is vital to ensure the functioning of the Bill and prevent any gaps in the arrangements established underneath it. Without it, there is a risk of not being able to address properly any new issues arising from protocol provisions.
I thank Members for their contributions. The Government are committed to ensuring that the Bill goes through the appropriate scrutiny, with 18 hours set aside before the summer recess, while balancing the need for urgent action to ensure that protocol issues are rectified as soon as possible. Amendment 1, tabled by my hon. Friend Sir Robert Neill, amends clause 1 and paves the way for his amendment to clause 26, which we will debate next week and which reflects a desire for Parliament to approve in a vote the provisions in this Bill before they can be commenced. I am cognisant of the fact that it was not two years ago that he famously introduced a similar amendment to another Bill, of which the Government broadly accepted the substance. However, the situation is not the same as it was two years ago.
Now, we face an urgent and grave situation in Northern Ireland, not a hypothetical one. We know that, as it stands, the EU is not prepared to change the protocol to resolve the problems we face—we have tried that repeatedly—and that there is no prospect of seeing a power-sharing Government restored in Northern Ireland if we are unable to tackle those problems. It is a simple fact. We need to be able to move swiftly, using the powers in the Bill to deliver the changes we propose and enable the protocol to operate sustainably.
I understand what my right hon. and learned Friend is saying, and I am grateful to him. However, if there is a need to act urgently, it is likely to be many months before the Bill completes its parliamentary passage. With respect, that is a contradiction. He is actually making a compelling case for using the article 16 safeguarding procedure.
I am grateful to my hon. Friend for his intervention. “Urgent” does not necessarily mean “immediate”; it means, “As soon as we can reasonably and practically do it.” I think he knows that. I will come to article 16 in due course, but we are going as fast as we can given when the House is sitting.
Additional parliamentary procedures after Royal Assent would risk delays to the regime coming into force, and undermine the certainty and clarity that we are looking to provide through the Bill. That would risk undermining the aim, which we all share, of seeing an Executive back up and running and delivering for the people of Northern Ireland, and risk real harm to businesses and citizens.
If I may, I will make some progress. The amendment is well-intentioned, but I hope the Committee will understand that our priority as a Government is to proceed in a way that best supports the functioning of the Belfast/Good Friday agreement and its institutions, which in this case means giving certainty to the people of Northern Ireland that the regime we propose under the Bill will be in place as quickly as possible. That is why I ask my hon. Friend the Member for Bromley and Chislehurst to withdraw the amendment.
Further to the point made by my hon. Friend Sir Robert Neill, is the concession by the Government that “urgent does not mean immediate” not a plain acknowledgement of the fact that necessity does not apply, because it means there is no grave and immediate peril, which is one of the tests for necessity?
My right hon. Friend is conflating two issues. I will come to necessity in due course.
My hon. Friend the Member for Bromley and Chislehurst also mentioned article 16, and the reality is that it does not solve the problem at hand. It would only treat the symptoms without fixing the root cause of the problems. We need a comprehensive and durable solution to this urgent problem and certainty for the businesses and people of Northern Ireland.
On durable solutions, does my right hon. Friend agree that the only durable solution is for the EU to listen to what my right hon. Friend Sir Jeffrey M. Donaldson articulated about the needs of Unionism and for a British Prime Minister, in place from September, not to go moaning to their counterparts, as has happened over the past two years, but to grip the issue and solve it politically?
Of course, it takes two sides to discuss such matters and come to a solution. I think it has been accepted by all who have spoken so far that there has been some intransigence on the European Union’s side. That is the clear reality. For example, there have been more than 300 hours of discussions between the parties, over 26 meetings involving my right hon. Friend the Foreign Secretary or her predecessor Lord Frost, and 17 non-papers. I am not sure how much more could be done in terms of negotiation; it does need two sides.
I will move on, as I have several amendments to address and I do not want to interfere with Members’ right to speak in due course.
On amendment 26 and new clause 8, tabled by Layla Moran, she is right to raise the important issue of this Bill’s relationship with the UK’s international legal obligations. However, the amendment is not necessary. The Government have already published a statement setting out their legal position that the Bill is consistent with the UK’s international obligations. In line with the practice of successive Governments over several years, it summarises our position but does not set out the full detail of our legal advice. That is not something that any Government of any shade can do, and it is quite rare to give such a memorandum.
The statement makes it clear that the strain that the arrangements under the protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, means there is no other way of safeguarding the essential interests at stake other than the Bill we propose. There is clear evidence of a state of necessity to which the Government must respond. As in other areas, it would not be prudent for the Government to publish evidence or analysis underpinning every point of legal detail—the lawyers in this House will know that that would be extremely inappropriate—particularly in advance of specific cases arising in potential future litigation. I therefore urge the hon. Lady not to move her amendment.
The Minister is arguing that future litigation is why we cannot see the full legal advice, but it is precisely because future litigation is quite likely that this House deserves to see the full legal advice.
It is long-standing convention for very good reason that legal advice is not published in full. We know that, famously, from the Labour Government a couple of decades ago, when there was an enormous controversy about that. It stands as a very good reason, as I have discussed. However, we have published a memorandum on the matter that goes some way towards answering the hon. Lady’s question.
I move on to amendments 31 and 32 and new clause 10, tabled by Mr Lammy. The Bill is designed to bring swift solutions to the issues that the protocol has created in Northern Ireland. Those solutions are underpinned by the designation of elements of the protocol as “excluded provision”. Put simply, by excluding some elements of the protocol and withdrawal agreement in domestic law, the Bill is able to introduce, with the necessary certainty, the changes that are needed in Northern Ireland.
These amendments, through the conditions they would impose, would undermine the ability to exclude elements of the protocol and therefore undermine the entire operation of the Bill. The first condition in particular—that provision is excluded only if the EU and the UK agree to it—is obviously unworkable. Negotiations with the EU have so far been incapable of delivering the solutions that are needed, so to set that as a condition would clearly be dysfunctional. The second condition—that provision is excluded only if necessary as part of an article 16 safeguard—also fails to meet the needs of the situation. As I have said, article 16 has inherent limitations in its scope in that such safeguard measures could address some trade frictions, but not the broader identified impacts of the protocol.
In sum, the right hon. Gentleman’s amendments would unacceptably caveat the core operation of the Bill. In other words, they would be wrecking amendments preventing it from delivering the swift solutions in Northern Ireland that it is intended to provide, and that is why I ask him not to press them.
The right hon. and learned Gentleman referred earlier to the three bits of the protocol that the Bill specifically prevents from being excluded—namely, rights of individuals, the common travel area and other north-south co-operation—which he described as particularly sensitive. Could he explain to the Committee why he does not regard article 18 of the Northern Ireland protocol, which relates to democratic consent in Northern Ireland, as equally sensitive? Why is that not covered by the exclusion? As I read the Bill, the Government could, if they wanted to, change article 18. Is that correct?
I hope to come to the right hon. Member’s point more specifically in due course, if he will bear with me.
I want first to turn to amendment 5. We have always been serious about negotiations, and we remain so. The whole matter is sensitive and the whole issue is one that we remain serious about. Our preference remains to resolve the issues with the protocol through negotiations, and the Bill provides for this, so I welcome and endorse the sentiment underlying the amendment. It is clear, however, as I have said—I have to emphasise this, because it is not emphasised often enough in my view—that there have been over 300 hours of talks to date, in which the United Kingdom has shared 17 non-papers with our counterparts in pursuit of a solution.
I will not give way.
The European Union is not willing to entertain the changes that are necessary to fix the issues with the protocol, so the Government’s judgment is that, absent a change in stance from the European Union, we have to be realistic. Good faith negotiations to resolve the issues with the protocol have already been exhausted. As I say, there have been 26 separate meetings with the Foreign Secretary and Lord Frost.
I am not giving way, as I have indicated. I will give way in due course.
It has long been the position that the Northern Ireland protocol and negotiations regarding it are, like any other treaty, a matter for the Government, operating under the foreign affairs prerogative. The Executive must retain that prerogative for very good reasons. Because of the protocol, there is anyway no Northern Ireland Assembly currently sitting to provide the consent that this amendment would require. This Bill aims specifically to restore stability in Northern Ireland and a working Assembly—that is the very essence of it—so there is an essential flaw in the amendment’s logic in requiring the Assembly to approve the operation of the Bill. That is why I ask Colum Eastwood not to press the amendment. Of course, the Government will continue to update Parliament and the Northern Ireland Executive, when they return, on the status of talks with the EU regarding the protocol, and to consult stakeholders in Northern Ireland on the operation of the Bill.
Just on a point of clarification for the Committee, if the Northern Ireland Assembly is not up and running, the provisions in the Bill state that when the consent vote comes, the Assembly will be recalled and there will be a vote on that consent. I say that just so there is no lack of clarity for the Committee about the current provisions within the consent mechanism.
I thank my right hon. Friend for making that point.
With your permission, Dame Eleanor, I will speak to amendment 25 and new clause 7 together, which are in the name of Stephen Farry. The Bill is designed, as I have said, to bring swift solutions to the issues that the protocol has created in Northern Ireland. These solutions are underpinned by the designation of elements of the protocol as “excluded provision”. Put simply, it is by excluding some elements of the protocol and withdrawal agreement in domestic law that the Bill is able to introduce, with the necessary certainty, the changes that are needed in Northern Ireland. By requiring the prior approval of the Northern Ireland Assembly, the amendments would undermine the ability to exclude elements of the protocol, and therefore undermine the entire operation of the Bill. That is unworkable. Because of the protocol, no Northern Ireland Assembly is currently sitting to pass the approving resolution that the amendment would require. The Bill as introduced aims specifically to restore stability in Northern Ireland, and a working Executive and Assembly. Therefore, in requiring the Assembly to approve the operation of the Bill, there is an essential flaw in the logic of the amendment.
As the hon. Member for North Down will be aware, the Sewel convention applies to this Bill, as it does to all Bills of this Parliament that intersect with devolved competence. I confirm that in the absence of functioning institutions, senior officials in the Foreign Office have already made contact with the head of the Northern Ireland civil service regarding legislative consent, and we hope to reach a positive solution as soon as the institutions are restored. By contrast, the amendment would allow the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation related to a reserved matter. That, of course, is wholly inappropriate under devolution arrangements. The Government will consult stakeholders in Northern Ireland, including Members of the Assembly, on the operation of the Bill during its passage and thereafter. I therefore ask the hon. Gentleman to withdraw his amendment.
The Minister has mentioned the word “logic” on several occasions and linked the necessity of the Bill to the restoration of power sharing. Does he recognise that there is a real danger in setting a precedent of linking the two together? Have the Government considered a scenario in which Sinn Féin reacts to the Bill and, very regrettably and irresponsibly, withdraws from power sharing? Where does that leave us? Are we any better off? Are we not in a different form of crisis?
I will happily do so. I am talking about a situation in which the Government have linked the passage of the Bill to the restoration of power sharing in Northern Ireland. I am asking on a point of logic: if a dangerous precedent is set by that, how do the Government respond to a situation where, as a reaction to the passage of the Bill, Sinn Féin, very irresponsibly and regrettably, walks out from power sharing devolution and leaves us no better off overall?
My understanding is that Sinn Féin is willing to go back in and has not set preconditions. That is the actuality of the position, rather than the hypothesis raised by the hon. Gentleman.
Forgive me, but may I move on to the issue of necessity, since a number of Members have mentioned that and it may be relevant? On amendment 6, I understand the desire of the hon. Member for Foyle for the Bill to be clear about the powers that it confers to the Government. However, it is essential that the Bill confers necessary powers for the Government to deliver a durable solution to the serious difficulties that the current implementation of the protocol is causing. Those include, as we know, the undermining of the functioning of institutions established by the Belfast/Good Friday agreement.
Amendment 6 confuses an international law concept—the doctrine of necessity, which is long established and well understood—and a domestic statutory one, which concerns the appropriate tests for Ministers exercising powers given to them by Parliament. It is essential that the Bill delivers clarity and certainty for the people of Northern Ireland, and amendment 6 would undermine that. I add the caveat that it is the responsibility of Government to deliver a durable solution to the issues the protocol is causing, in order to protect the Belfast agreement. Any unnecessary additional conditions to the exercise of the powers necessary to deliver that solution will only reduce the clarity and certainty of the Bill and what it does to provide for the people of Northern Ireland. That would undermine our ability to get the Executive back up and running, which is a desire I know we all share. I therefore ask the hon. Gentleman to withdraw the amendment.
Amendments 7 and 14 were also tabled by the hon. Member for Foyle. The Bill will fix the practical problems that the protocol has created in Northern Ireland. That avoids a hard border, protects the integrity of the UK and safeguards the European Union single market. I am therefore entirely sympathetic to the sentiment behind the amendments. The Government are motivated by the same concerns that underlie them. We are moving quickly with this Bill—as quickly as possible. That is our focus, because the situation is pressing.
The power in clause 15, which among other things would allow Ministers to reduce the amount of the protocol that is excluded, is designed to ensure that we are able to get the final detailed design of the regime right. Its use is subject to a necessity test against a defined set of permitted purposes. It is essential that that power can be used quickly if needed. Amendments 7 and 14 would pre-emptively prohibit certain uses of the power, but I submit to the Committee that the proper way to scrutinise its use is in this place. All regulations are subject to scrutiny, under either the negative or the affirmative procedure, so it is not as if anything would be set aside without that scrutiny. The hon. Gentleman’s amendments would also do nothing to resolve a potential clash between the permitted and the unpermitted—for example, a security and global market access intention—so they would risk tying the Government’s hands behind their back just when they would need to be most agile. For those reasons, I ask him to withdraw amendments 7 and 14.
I am listening with great interest to the series of amendments that my right hon. and learned Friend has been dealing with and asking Members to withdraw. Has he noticed that amendment 1 is neither chicken nor egg, and that there is no reference in it to any evidence test? I am slightly surprised that at the moment, we are not quite clear as to whether it is going to be suggested that that amendment be withdrawn.
I am sure that my hon. Friend the Member for Bromley and Chislehurst will have heard what my hon. Friend has said.
I will now turn to amendment 27 and new clause 9, tabled by Stella Creasy. The Bill is designed to provide swift solutions to the issues that the protocol has created in Northern Ireland. Those solutions are underpinned by the legal designation of elements of the protocol as excluded provision. Put simply, it is by excluding some elements of the protocol and withdrawal agreement in domestic law that the Bill can introduce the changes that are needed in Northern Ireland with the necessary certainty. Through the conditions they would impose, the hon. Lady’s amendments would undermine the ability to exclude elements of the protocol, and therefore undermine the entire operation of the Bill. I would also argue that they are unnecessary, because the actions they require are already being taken in practice during the passage of the Bill. By voting on its passage, both Houses of Parliament have an opportunity to indicate their approval for the principle of excluding elements of the protocol.
The Government have already clearly set out in the statement of
The Minister has said that my amendments are not necessary. That is very welcome, because new clause 9 requires the Government not just to tell us that they believe they are acting within international obligations, but to set out how, so that the House has a chance to confirm that it is not in breach of those obligations. If that is not necessary, can the Minister set out for us how he believes the legislation is in line with international obligations—not that it is, but specifically how?
I commend to the hon. Lady the legal memorandum that was published by the Government. It is, I think, only the second time that a Government of the day has published such a legal document, and it is exceptionally useful. We cannot publish the full legal advice—no Government can do that.
I will now turn to amendment 8, tabled by the hon. Member for Foyle. I certainly sympathise with the intention of the hon. Gentleman’s amendment, but I reassure him that it is also entirely unnecessary. The Government have no intention whatever to use the power in clause 15 to alter the operation of the domestic consent mechanism, which I think answers the point that was made earlier on the Opposition Benches.
The hon. Member for Foyle will recall that securing the consent mechanism was one of the key concessions that paved the way for the Government to agree to the revised Northern Ireland protocol back in 2019. It was a concession that this Government secured, so it made no sense for the Government to subsequently remove one of their key negotiating successes through the Bill. It is perhaps because that point is so self-evident that we did not see the need to protect this element of the protocol under clause 15(3). I hope that answers the point made by the hon. Member for Foyle and others. For the avoidance of doubt, however, I can confirm that the democratic consent process remains an integral part of the protocol. The protocol should not, and indeed cannot, continue unless it maintains the support of the majority of Members of the Northern Ireland Assembly. I hope I have provided the assurance the hon. Gentleman requires and I urge him not to press amendment 8.
Amendment 9 has also been tabled by the hon. Member for Foyle. The Government have already been very clear why it is necessary to seek to exercise such powers. They are needed to fix the practical problems the protocol has created in Northern Ireland, as it is currently undermining the Belfast/Good Friday agreement and power sharing, and with it, peace and stability in Northern Ireland. We published a policy paper and legal statement on
As the Government set out in the legal statement on
My right hon. Friend makes an excellent point, as usual. I have to say that I have never heard those requests.
Amendment 10, again tabled by the hon. Member for Foyle, relates to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. They are, of course, important and well-respected institutions. They were established on the basis of the Belfast/Good Friday agreement. They undertake important duties and any change to their remit should not happen arbitrarily. The Government engage regularly with the commissions and they have powers to provide advice to the Government on issues arising from article 2 of the protocol. The Government have engaged broadly on the issues created by the protocol with stakeholder groups across business and civic society in Northern Ireland, the rest of the United Kingdom and internationally. In fact, the engagement has been considerable. As the Committee will know, the Bill provides specific powers to establish a new regime in Northern Ireland which addresses the issues with the current operation of the protocol. We are consulting stakeholders on the detail of how the powers are to be used. We will give plenty of notice to those affected in due course. Therefore, amendment 10 would compel the Government to do what, in many cases, they already intend to do.
We are moving quickly with the Bill because the situation in Northern Ireland is pressing. The power in clause 15 that would, among other things, allow Ministers to reduce the amount of the protocol that is excluded is designed to ensure that we can get the final, detailed design of the regime right. Its use is subject to a necessity test against a defined set of permitted purposes. It is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions that we have outlined to the problems that the protocol is causing.
It is essential that the power can be used quickly if needed. Although, in normal cases, the Government will of course engage with stakeholder groups in Northern Ireland, there may be occasions when the urgency of a situation means that the Government need to act swiftly. This amendment risks tying the Government’s hands behind their back, and that is why I ask the hon. Member for Foyle not to press it.
Amendment 40 is in the name of the right hon. Member for Tottenham, who I do not think is in his place. This is the first of a number of amendments from him in the same vein, to which the Government have a single view. The amendment would replace the test of “appropriateness” in the use of the Bill’s delegated powers with one of “necessity”. Members should not confuse this with the international law doctrine of necessity, as the right hon. Member is doing.
The question covers well-trodden ground. Members may remember the extended debates on this topic during the passage of the European Union (Withdrawal) Act 2018. The powers there are similar to those in this Bill, the European Union (Withdrawal Agreement) Act 2020 and the European Union (Future Relationship) Act 2020. I note that the House and their lordships in the other place ultimately accepted that the word “appropriateness” in this context was, in fact, appropriate.
The word “necessary”, which this amendment seeks to import, is a very strict legal test for a court to interpret. Where there are two or more choices available to Ministers as to what provision is appropriate to address the issues that the protocol has created, arguably neither one is strictly necessary, because there is an alternative. Ministers need to be able to exercise their discretion to choose the most appropriate course. That is why the word “appropriate” is the correct word.
There are clearly multiple choices in how to replace the elements of the protocol that no longer apply in our domestic law. The Government must propose that which would be the most appropriate choice. That is why we have chosen that word. I therefore ask the right hon. Member not to press his amendment.
Order. Before the Minister comes to his next point, I draw to his attention that a great many people wish to speak in the debate. A lot of people have a right to do so because they are proposing amendments to which I would like to give them time to speak. The Minister has had the floor for 41 minutes. I hope that he might soon be able to draw his remarks to a close, possibly by addressing just the essential parts without the peripheral parts. In that way, there might be enough time, as we have only an hour and a half left of the debate.
I am in full agreement with you, Dame Eleanor, and I am coming rapidly to a conclusion with my points on new clauses 1, 2 and 3, which relate to the Government’s approach to environmental protection and principles as related to the Bill. They introduce new provisions to the Bill that require Ministers of the Crown to provide statements on the environmental impacts of any powers taken under the Bill prior to being able to exercise those.
I understand the desire of the hon. Member for Foyle to ensure that our high environmental standards are upheld across the United Kingdom. In the UK, we already have some of the highest standards of environmental protection in the world. We have no intention of weakening or lowering those standards. The Government are proudly committed to enshrining better environmental protections in law to demonstrate a firm commitment to the highest environmental standards, as we did in the Environment Act 2021.
The UK Government and the Northern Ireland Executive are already held to account by the independent Office for Environmental Protection, which was created under the Act and has a statutory duty to monitor and report annually on progress on improving the environment in accordance with the UK Government’s environmental improvement plans. The OEP also monitors the implementation of, or any proposed changes to, environmental law, and may hold the Government and public authorities to account for serious failures to comply with it. In addition, the Act already creates a duty on Ministers to be guided by five internationally recognised environmental principles when making policy.
In that context, new clauses 1, 2 and 3 are not necessary, as their purpose is served by existing protections, both practical and legislative. I therefore ask the hon. Member for Foyle not to press the new clauses.
May I return very briefly to the consent mechanism, which operates on an international level? We are committed to the 2024 consent vote, which was a principal goal of the Government’s negotiation, as I alluded to a short time ago.
I am grateful that you are in the Chair today, Dame Eleanor, and that I have the opportunity to speak in this debate. As the new Secretary of State, Shailesh Vara, is in his place, may I start by welcoming him to the job? I hope that we will have the chance to have exchanges into the future. As I have already reassured him, when this divisive period—which includes the contents of this Bill—passes, I hope that there will be more opportunity to find common ground. His predecessor, Brandon Lewis, was present a little earlier; that would have been a good opportunity to pass on my sincere gratitude for the way in which he dealt with me when he was in the Department.
Clauses 1 to 3 of the Bill deal with the intention and the main powers. New clause 10, which I will be pushing to a vote, attempts to inject at least some respect for the rule of law into the Bill. The Opposition are also supporting the SDLP’s amendment 8.
The Bill tells us everything we need to know about the Tory party of today, because it represents an abdication of all responsibility—the responsibility to play by the rules, the responsibility to be honest about our actions and their consequences, the responsibility to honour our commitments made on behalf of our country. On Second Reading, the Foreign Secretary declared herself a patriot. Patriotism includes our flag, of course, but it is also about our values. To me, those values should unite all democratic politicians, irrespective of political party. They include respect for the rule of law and equality before it; respect for human rights and the institutions that defend them; and respect for commitments, foreign and domestic, voluntarily entered into and collectively applied.
It says a lot that simply describing those values sounds like a criticism of the Conservative party, the current Prime Minister and almost certainly the next. It is most certainly a criticism of the Bill, which not only breaks convention—the law—but betrays our values as a Parliament and as a country. The Bill exists because the Prime Minister was not honest about the full nature of the Brexit deal. That was followed by a manifesto that promised that his deal was “oven-ready” and vowed to the public that there would be no renegotiations of it.
It is easy for Ministers to dismiss my criticisms, because they are the words of an Opposition spokesman, so how about the words of one of their leadership contenders—of someone running to be their next leader and our Prime Minister? All the contenders have trashed the Tory record in office, so let us take just the most recent example. This morning, Penny Mordaunt said:
“The British people…are fed up with us not delivering, they are fed up with unfulfilled promises”.
She is right, and the Conservative manifesto promise not to renegotiate is presumably part of the problem that she describes.
Can the hon. Gentleman explain how it is right for the voters of Northern Ireland to be subjugated to laws that are passed in the Council of Ministers behind closed doors, without even a transcript? How does he justify that? Does he not agree that that is a grave and imminent peril to the people of Northern Ireland?
The question that the hon. Gentleman is asking is three years too late. It should have been asked as the Government were negotiating, proposing and delivering the protocol in the first place. The debate here today is not about the nature of the protocol as signed into international law; it is about the way in which the Government have failed to negotiate their way forward, and seek to break the commitment that they made.
I am appealing to the hon. Member. He can use this opportunity to stand here and slag off the Government—a slagging off that they probably deserve—but that is not going to solve the problem. Can he confirm that he will support the clauses that will fix the problem?
I certainly do support the new clauses and the amendments that I am putting forward, which I believe will go some way towards fixing the problem, and of course I will, in the hon. Gentleman’s words, “slag off” the Government and the Prime Minister, because it was the Prime Minister who went to the people of Northern Ireland and promised that over his dead body would there be a border in the Irish sea, and then went home and delivered it. I will be critical of the Government who treated Northern Ireland in this manner. I accept that the Democratic Unionist party, and others in the Unionist community, opposed the protocol from the beginning, and they oppose it now. They have been consistent, while the Conservative party has not.
No, I will not give way. If the right hon. Gentleman were really committed to this issue, he would not have walked in halfway through and started intervening on people. The time to be here was at the beginning, and then he should be here in time to make a speech.
Is not the problem with this Bill that it will not give voice to people in Northern Ireland or their representatives? It puts all the control in the hands of a Government Minister here in Westminster.
As we have seen throughout the Government’s response to the challenges of Brexit, they have repatriated powers from the EU but have hoarded them, often not just for Whitehall but for themselves. These often end up being the powers of patronage that Ministers have wielded for their own benefit, and for the benefit of the political party that we see opposite us, rather than for the benefit of our entire country.
For 25 years, the balance between majority opinion and the power-sharing between both communities in Northern Ireland has been a delicate one, but, extraordinarily, this Bill fails on both. To gain the support of one community, they are in danger of losing another. On top of that, a majority of Assembly Members have signed a letter rejecting the Bill. The Bill might persuade some in the short term, but it will not get Northern Ireland back on track into the long term.
I will make some progress, because I know that many of the Members who are now seeking to intervene will be making speeches, and I look forward to those.
The legislation before us today flies in the face of our values as a country, and those that many of us used to associate with the Conservative party. It will break international law, and in so doing will damage our reputation with our closest allies; and for all that damage, we get so little benefit. The Bill will not move us forward one iota in addressing the long-term challenges facing the trading circumstances of Northern Ireland while respecting the unique circumstances that have delivered peace, stability and progress in the years since the Belfast/Good Friday Agreement was signed.
The Government’s stated preference is still a negotiated solution. However, at the very beginning of the Bill, clause 1(a) states:
“This Act…provides that certain specified provision of the Northern Ireland Protocol does not have effect in the United Kingdom”.
Unilaterally changing an international agreement does not further negotiations. With months of falsehoods, sleaze and squalor, the Conservative party has brought the Government into disrepute. Now they are in danger of bringing our country into disrepute as well.
Even worse, Northern Ireland is again being used as a plaything in the Conservative leadership contest. The Foreign Secretary, who is supposed to be leading negotiations with the EU, is instead parading her inability to reach agreement with it as a key reason for people to vote for her. Multiple contenders have now said that they are willing to leave the European convention on human rights, which would be a straightforward and outright breach of the Belfast/Good Friday agreement that they all claim to cherish.
Yesterday I read an extraordinary article in The Times, written by the current Attorney General. This Bill is legally contentious, and it is the Attorney General who provides the legal basis for it. Her advice is supposed to be impartial, yet she wrote:
“The Northern Ireland Protocol Bill needs to be changed so that it actually solves the problem. That means VAT, excise and medicines should be under UK law from day one—currently they are not. The bill’s ‘dual regulatory regime’ lets EU law flow into Northern Ireland in perpetuity. We need to sunset that and provide a mechanism for moving to Mutual Enforcement. Otherwise we’re giving Brussels a legislative blank cheque. These are all changes I’ve been fighting for while in government. Without them, the bill treats people living in Northern Ireland as second-class citizens.”
We have collective responsibility in this country: one Cabinet Minister speaks for all. Will the Government be taking forward the amendments that the Attorney General has suggested because she represents collective responsibility? Can publishing these views as part of a leadership pitch be reconciled with the duty to give impartial advice on this Bill? And can we trust the previous advice she has given, which seems contrary to so many expert views? These questions should all be answered before the Government proceed with this Bill.
This lamentable, unprecedented situation underscores the sheer irresponsibility of a caretaker Government proceeding with a Bill of this nature. It is contentious, it has become a political football in a surreal leadership contest and it breaks a manifesto pledge. Today marks one new low, even for this rule-breaking, convention-trashing Government.
My hon. Friend is making some excellent points. I want to refer him back to the point made by Stephen Farry about the illogicality of the Government deciding that one party should go back into the Assembly. Does my hon. Friend agree that that might not stop in the future, and that another party could come to the UK government and say, “We will go back and we will want something from you.” What would the Government say then? Being bipartisan has been an important part of our history in this House, both in ignoring Northern Ireland since 1920 and then in trying to do something about it. Does my hon. Friend agree that the point about one side being adhered to was a useful one?
I am grateful to my hon. Friend for her thoughtful contribution; I know that she cares deeply about these issues. Since I have been in this job I have striven, as I hope my friends in the DUP will acknowledge, to take them on their own terms when they express so strongly the existential challenge they face in the protocol. I have also tried to do so for other parties representing other communities in Northern Ireland. It is a shame that, to date, the Government have not striven so hard to take other parties on their own terms and engage with them right the way through. If they had done so, I simply do not believe we would be in the position we are in today.
This afternoon we will quite simply be voting on whether to uphold the rule of law. Expecting a Government to keep their legal obligations should not be partisan. Many Members on the Conservative Benches spoke powerfully on Second Reading about the weakness of this Bill. Mrs May, the former Prime Minister and former leader of the party, said the following:
“My answer to all those who question whether the Bill is legal under international law is that…it is not.”
She went on to say:
“As a patriot, I would not want to do anything to diminish this country in the eyes of the world. I have to say to the Government that this Bill is not in my view legal in international law, it will not achieve its aims and it will diminish the standing of the United Kingdom in the eyes of the world. I cannot support it.”—[Official Report,
Simon Hoare said:
“The Bill risks economically harmful retaliation and runs the risk of shredding our reputation as a guardian of international law and the rules-based system. How in the name of heaven can we expect to speak to others with authority when we ourselves shun, at a moment’s notice, our legal obligations?”—[Official Report,
Sir Roger Gale said that
“the Bill we are proposing to put through this House tonight will be a gross breach of international law if it is enacted and implemented.”—[Official Report,
We also have the views of experts such as the Bingham Centre for the Rule of Law, which said:
“The Bill is in clear breach of international law as it seeks to change unilaterally the domestic effect of an international agreement that the UK has signed up to, without legal justification.”
New clause 10 is intended to prevent the Government from breaking our legal obligations by requiring either of two conditions to have been met before they can use powers to start to exclude parts of the protocol.
No, I have given way once. The hon. Gentleman is seeking to catch the Deputy Speaker’s eye, and I look forward to his contribution.
New clause 10 would ensure that all legal avenues are pursued, which I hope is entirely in line with the intervention made by Sir Geoffrey Cox. He sought to clarify this point with particular reference to article 16, which I will address momentarily. I am pleased that he is still in his place.
The condition must be either the agreement condition or the article 16 condition:
“The agreement condition is that the United Kingdom and the EU have agreed following negotiations that the provision is excluded provision.
The Article 16 condition is that the United Kingdom is unilaterally taking appropriate safeguard measures, in accordance with Article 16 of the Northern Ireland Protocol”.
New clause 10 does not wreck the Bill or prevent its provisions from ever being used; it simply ensures the Government stick to our legal obligations before taking action.
It is wrong to rely on the doctrine of necessity to justify this Bill, as the Government’s legal position does. For necessity to be applicable, the Bill would have to be the only way for the UK to safeguard an essential interest against a grave and imminent threat. Uniquely, the Government’s position is that the protocol they designed and agreed is a grave and imminent threat. By their own admission, this Bill cannot be the only way to address the protocol because Ministers still say they are seeking a negotiated solution with the EU. It just does not make sense.
Labour has been clear all along that we want the EU to show more flexibility in the negotiations. The Government must think progress is possible, too, because they are still pursuing negotiations even at this point. The agreement condition of new clause 10 recognises that, as a legitimate starting point for improving an international settlement that we have signed up to, article 13.8 states that the UK and the EU can supersede the protocol, so long as any subsequent agreement indicates the parts that will be altered—in other words, if it is negotiated. The Government should be focusing all their energies on reaching an agreement instead of wasting time on this Bill, which will do more harm than good and is never likely to make it into statute anyway.
The article 16 condition is another route the Government could take if they were going to act within the law. Negotiation should be the top priority for addressing the protocol challenges but, if the point comes where negotiation is no longer viable, safeguard clauses already exist in the protocol itself. Let me be clear that necessity cannot be relied on if the safeguard clauses have not even been attempted by this Government.
Article 16 sets out what either party can do in circumstances where one party to the protocol feels it needs to take unilateral measures to prevent serious economic, societal or environmental difficulties, or diversions of trade, that are likely to persist. It would be in compliance with international law if the Government sought to use the safeguard clauses of the agreement they signed. Instead of following the process in that agreement, however, they are unilaterally scrapping the agreement altogether.
New clause 10 would ensure that the extraordinary powers in this Bill, which will otherwise breach the terms of the protocol, are exercised only in accordance with the UK’s international obligations. All Members who respect the rule of law should vote for it.
Time and again, Labour has called for the EU and the Government to get back around the negotiating table. There are large areas of common ground that have shown that successful negotiation is possible. Indeed, this is the only negotiation in history that is failing because all sides seem to agree. The way to unlock progress on the protocol is through negotiation and leadership, the very things that Britain used to be good at.
A Labour Government would get around the negotiating table, because “negotiation” is not a dirty word—it is just statecraft, diligence and graft. Statecraft and commitment are needed to deliver for our country, alongside a determination never to be blown off course by internal partisanship. As Churchill put it, we should “put country before party.” That is not a slogan but a principle, at least on this side of the Committee. Where this Government see challenges as an opportunity to have a row, Labour sees the imperative to rebuild. While this Government walk out of negotiations, Labour will be around the table, staying the course and delivering for our country. While this Government play politics with Northern Ireland’s fragile progress, a Labour Government would engage, respect and deliver.
How would the hon. Gentleman propose to negotiate to permit the voters of Northern Ireland to have a say in the laws that are being made for them?
It was a Labour Government who delivered the framework for the Good Friday agreement in the first place. We respect devolution to Northern Ireland. The key thing is that, yes, Northern Ireland has been suffering the existential challenges posed by the protocol, but, fundamentally, Northern Ireland has been suffering from neglect. When the Executive collapsed, there was no visit from the Prime Minister for five months; there were no multi-party talks, in Downing Street or in Belfast; there was no attempt at getting people around the table; and not a single statement was made to this House about Northern Ireland by the Northern Ireland Secretary at the time, the Prime Minister or the Foreign Secretary. Just imagine for one second what would happen if the Welsh Senedd or the Scottish Parliament collapsed and this House of Commons went five months before there was any action whatsoever. The only time the Prime Minister visited Northern Ireland was once the Assembly failed to be assembled, after the elections. At that point, when the difficulties in Northern Ireland became so deeply entrenched, the Prime Minister finally went over there for one quick, fleeting, in-and-out visit. That is not good enough. We know that Northern Ireland—all of Northern Ireland—deserves the full attention of the UK Government. It also needs the attention and engagement of this House, where Northern Ireland parties can have their say regularly, on an ongoing basis, not just once a month at oral questions.
Does the shadow Secretary of State accept that if the Prime Minister had set up residence in Northern Ireland and become a member of a political party there, he still would not have been able to resolve the issue that has just been raised with the shadow Northern Ireland Secretary: that this situation is a result not of the Good Friday agreement not working, but of the protocol where laws made in Europe cannot be debated and cannot be changed, and have to be implemented, under a threat of sanction from the European Court of Justice, in Northern Ireland? That is where the democratic deficit lies; it is not because the Government paid little attention to Northern Ireland, but because they gave us a protocol which imposes EU law and has created a democratic deficit. How would he deal with that?
I suggest that had the Prime Minister gone to live in Northern Ireland and gone to camp out there—bearing in mind that he is the person who went to Northern Ireland and promised that over his dead body would there be a border in the Irish sea, and bearing in mind what we now know he has been engaging in and the squalor with which he delivered the duties of his office, based on the resignation letters of members of his own Government—he is not the person who could ever have hoped to muster the statecraft to deliver the settlement that Northern Ireland needs.
I am going to finish now, so that we can hear directly from Conservative Members. We have always to remember that the Conservative party was the one that enabled, delivered and sustained that Prime Minister in office, and all the time that was done, the politics of Northern Ireland did not just fail to move forward—it sank. So this Bill, from that Government, who their leadership candidates are only too happy to support, is an affront to the UK’s values and to our international interests, at home and abroad. This Bill will not deliver the progress that is needed in Northern Ireland and it will only harm our interests abroad.
Order. We had three hours for this debate. The first four speeches have taken more than two hours. We have about 55 minutes left and 10 people wish to speak. I do not have the power to put on a time limit, but you all have the power to act decently, and speak for four or five minutes and no longer. I hold you all to honour. You should take four to five minutes, otherwise you are preventing other people from speaking. I call Sir Geoffrey Cox.
I will be quick. I have listened with fascination to the contributions and speeches made this afternoon. If I thought that the Bill would produce a durable and permanent solution, I would support it, but I do not believe it will produce a durable and permanent solution. The fact is that we cannot impose on Northern Ireland, or on any other party to a treaty that we signed, unilaterally a political solution. A political solution has to be reached politically; it cannot be imposed by this House through legislation. The EU—like it or not—and the Irish Government are a party to these negotiations. Unless we are able to achieve assent to the arrangements that we propose, they will not last. It will have to be resolved ultimately by agreement. It is much the same as the Northern Ireland Troubles (Legacy and Reconciliation) Bill—another attempt by the Government to impose a political solution on Northern Ireland, without first having reached the solution and then produced the legislation that works out and implements that solution. I do not believe that this legislation will produce a permanent solution.
We come to the question of necessity. I am not prepared to say that there is an impossibility that the basis of necessity could not justify the actions that the Government are taking. I have the gravest of misgivings about it, and the deepest of scepticism about whether or not it affords a proper legal basis as a matter of international law, but we have not seen the evidence. It is possible that the Government and my right hon. and learned Friend the Attorney General have seen some evidence that we have not seen that could crystallise at least the plausible case that this action needs to be taken.
I support the amendment tabled by my hon. Friend Sir Robert Neill, but the fact of the matter is that even necessity is not a legal basis for a permanent solution. The doctrine of necessity in international law requires the measures that have been implemented as a necessity to answer the urgent and imminent peril to be removed as soon as the basis for taking action on the grounds of necessity has gone. Indeed, necessity does not even remove the breach; one is still in breach of the agreement. Necessity simply removes the wrongfulness, which further emphasises the fact that necessity cannot produce a permanent solution as a matter of international law. Only agreement—only the reaching of a political solution—can do so.
Nobody need tell me about the politically tone deaf intransigence of the European Union in negotiation. I recall vividly in my visits to Brussels in the early months of 2019, saying to Michel Barnier, “But do you not see, Michel, that this produces an anomalous situation? If a farmer in Northern Ireland wants to take up the issue of cattle tagging, to whom does he go? When the law is imposed by the European Union, the only place he can go is either to Brussels itself or to Dublin, and how will that feel for one whole section of the community of Northern Ireland?” I must tell the Committee that the European Union representatives reacted as if they had been stung by wasps. We have to understand that those at the European Union believe the protocol to be the very zenith of creative diplomacy. They cherish and prize it, as if it were their own child. But that does not mean that we do not need to engage in the patient effort—maybe it will take months, maybe years—gradually to make them see that this is an unsustainable situation.
What we should not do is reach immediately for a solution, over which there are the gravest doubts as to its efficacy as a matter of international law, over which there are the gravest doubts about the sincerity and good faith of the Government—for I take it that the Government have advanced their case on the basis of necessity sincerely. I assume that they must mean, and genuinely mean, that they genuinely believe that there is a respectable case on the basis of necessity. If they do, why should we not at least be told the evidence—the evidence! We can gist it, we can summarise it if it is security sensitive, but at least let this House acquit itself of the doubt that exists over its legal efficacy as a matter of international law. It is no light thing for this House to take a step—
No, I will not give way. Too many need to speak.
It is no light matter for this House to take a step that is in contravention of its international obligations. The dignity of this nation rests upon its word being seen to be implemented once it is given. Therefore, I think it a small thing—a reasonable thing—that my hon. Friend the Member for Bromley and Chislehurst has asked.
My right hon. Friend the Foreign Secretary talked about Members as patriots. I do not believe that there is a person in this House who is not a patriot, not a person in this House who does not believe—[Interruption.] There may be some exceptions on the Opposition Benches, but I certainly do not believe that of those on the Labour Benches. The fact is that I want to give credit and the benefit of the doubt to everybody, but patriotism can also be the belief that we should stand by our word and that we depart from it only if there is a proper legal basis for doing so.
There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government. Attorneys General would come to the House to answer questions on the compatibility of statutes with international law. I invite the Minister, my right hon. and learned Friend Michael Ellis, to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.
I say to my right hon. and learned Friend that I will not be able to support this Bill—that comes as no surprise—but I sympathise with the plight in which the Government find themselves. We should all be a lot better if we united in this House to besiege the European Union with requests so that it sees that it must effect real change in this protocol. That is why I asked Peter Kyle what is his solution to the democratic deficit of which my hon. Friend Sir William Cash has properly and accurately spoken.
These are really intransigent, intractable problems. It is no use sitting, as the hon. Member for Hove does, attacking those of us on the Government Benches for not having solutions if he just talks more and does not propose constructive, new replacement agreements that might fulfil the legitimate wish of the Unionist community to feel that they are not separated and segregated from the rest of the kingdom, while doing justice to the European Union’s desire to protect its single market.
New Zealand has been able to negotiate quite diligently and swiftly a veterinary agreement with the European Union. Turkey has been able to agree a customs arrangement with the EU. There has been no law breaking, no storming out of negotiations; representatives sat round the table and got it done. Why does he think that this Government have failed where other Governments have succeeded?
Order. Before the right hon. and learned Gentleman answers the question, I must say that his rhetoric is matchless, but his arithmetic is rubbish. He has held the Committee for 10 minutes with his matchless rhetoric, and I beg him to draw to a conclusion.
Dame Eleanor, you rebuke me entirely justly. Let me see if I can answer the question. Yes, of course there are trade mitigations, and I had a sincere hope two and a half years ago that they would be resolved in the joint committee. They have not been resolved in the joint committee.
I do not know, but it is no use the hon. Gentleman’s using the tactic of deflection to try to put me off my question to him. The democratic problem is what I put to him, and Labour has no answer to that problem. If the party is to be taken seriously, it needs concrete proposals that might work. On that note, Dame Eleanor, I will conclude.
I take this opportunity to welcome the new Secretary of State to his place; I look forward to working with him.
I rise to speak to amendments 29 and 30 on the Order Paper and to give notice to the Committee that I intend to put clause 15 to a vote, as it is the heart of the Bill. My party is opposed very much to the Bill in principle. In our view, the hard reality is that Brexit is not working for any part of the UK.
It was Brexit that created the need for a protocol, and we have been clear that within the ambit of that protocol there ought to be room for flexibility. It should be possible for a UK Government who are acting in good faith and are trusted to be able to negotiate constructively within the workings of that protocol to deliver better outcomes, which I think none of us would object to seeing.
We have seen that there is considerable overlap between the proposals of the UK Government and the European Union in terms of the opportunities presented by sanitary and phytosanitary checks and the labelling of goods to eliminate many of the checks currently causing so much difficulty and interrupting trading arrangements. However, introducing a Bill that will break international law and relies on the rather flimsy—at least in the context of the information we have—concept of necessity, is certainly not the way to go to build that trust.
The Bill will damage the UK’s standing in the world. Without a shadow of a doubt, it undermines the UK’s commitment to the rules-based international order. The Law Society of Scotland, which is not known as a revolutionary or radical organisation in such matters, has gone so far as to say that the UK Government should,
“as a matter of principle, comply with public international law and the rule of international law, pacta sunt servanda (agreements are to be kept)”.
That should be honoured. It strikes me that even citing the legal doctrine of necessity is tantamount to an admission of a potential future illegality, since the defence is only relevant when international law is being broken. On a political level, there is tremendous difficulty for the Government in seeking to put this argument across. The agreement was freely entered into, on terms that they in many respects insisted upon, which was not only lauded, but which the UK Government actively curtailed the time and opportunities for parliamentary scrutiny in respect of. That takes a considerable amount of chutzpah.
Although we do not consider it unreasonable for the UK Government, in light of experience, to seek to renegotiate the terms on which our future trading relationship with Europe is based and how that impacts Northern Ireland, we do not believe the Bill will create the conditions where such a negotiation might progress or allow the Government to act within the letter and spirit of international law. It also brings the risk of consequences, a reaction and a potential harshening of the trade situation, which would simply make matters worse for everyone right across the United Kingdom.
Is my hon. Friend not concerned that, if this Bill were successful and therefore both the European Court of Justice and the rules of the single market were set aside, untold harm would be done to the economy of Northern Ireland?
Yes, I think untold additional harms could befall Northern Ireland—and not just Northern Ireland, but all parts of the UK. That is why it is important that the Government’s stated position of preferring negotiation is the one that they pursue wholeheartedly. I am very concerned at the suggestion that there has been no direct dialogue between Her Majesty’s Government and the European Union on this since February; I sincerely hope that is not true.
Time does not permit me to speak on further amendments, but I am particularly attracted to amendment 1 tabled by Sir Robert Neill, who seems to be rapidly becoming the critical friend that this Government perhaps do not deserve, and whose argument is very sound. We also fully support new clauses 7, 8 and 10.
The only way forward on this is negotiation, and the Bill will risk our ability to take that forward. I urge the Minister to accept the amendments that have been tabled in good faith but fundamentally to put the Bill on ice until the Government are back in a stable position, and then proceed on the basis of that reorganised mandate to achieve the negotiated settlement that each of us desperately needs.
Section 38 of the European Union (Withdrawal Agreement) Act 2020 includes the word “notwithstanding”. In relation to section 38(2)(b), the use of that word applies to direct effect and direct applicability. I have some experience over the past 38 years of dealing with a lot of these treaties. We have had to implement every one of them as they have gone through, much to my regret—Maastricht and so forth. If there is the necessity, to use that expression, to have to pass legislation in order to implement a treaty into domestic law, I see no reason at all why we should not introduce legislation when that treaty does not work, as in this case, to disapply it. It cuts both ways.
There is a lot of huffing and puffing over this international law business. I was shadow Attorney General during the time of the Iraq war, and I saw things going on with the then Prime Minister, now Sir Tony Blair, implementing arrangements and bringing forward the Attorney General’s opinions. In fact, it was I, on the Opposition Front Bench, who instigated the necessity for him to bring forward his truncated opinion, which was done in order to assuage Labour Back Benchers.
I do not get too worried about the idea of disavowing treaties where they necessarily have to be disavowed in the sovereign national interest of a country. There is a lot of pretty rank huffing and puffing going on about how solemn and sacred all this is. If a treaty does not do something that it is in the interests of the voters and is seen to be doing damage, it requires review. The Bill will do a great deal of good in mitigating the damage. It does not rip up the protocol; it amends it in a sensible manner.
I do not need to repeat my point about the democratic deficit. I am grateful to my right hon. and learned Friend Sir Geoffrey Cox for acknowledging that this point needs to be made. Sir Jeffrey M. Donaldson made the same point himself. He and I have had long discussions about all this. It is unanswerable, perfectly clear and self-evident. It is coram populo. It has nothing to do with an evidence base—the amendment does not even refer to one; it talks about parliamentary approval for a Bill. It is neither chicken nor egg, nor are there any feathers on the chicken. For practical purposes, with great respect to my hon. Friend Sir Robert Neill, the amendment is not worth pursuing, but I leave it to him to make his own decision.
When I heard my right hon. Friend Mrs May attack this Bill, I was reminded, because I have been watching these matters as Chairman of the European Scrutiny Committee for a very long time, that the Northern Ireland protocol had its origins in her Administration. Let us not think for a moment that the protocol was an invention of the Prime Minister; it was conceived of over a long time. The pass was sold during the previous Administration. That is the point I needed to make.
I have heard the condemnations from the former Prime Minister, which I find to be completely unjustified in the circumstances. I was privy to the negotiations going on when Lord David Frost and Oliver Lewis were involved. I know a little about the background, and I suspect my right hon. and learned Friend Sir Geoffrey Cox knows a great deal more than me. I can tell the Committee that the whole thing was conceived in the previous Administration. Let us not put up too much—or at all—with criticism made of this Government, or as it proceeds, a new Administration with a new Prime Minister reasonably shortly, on the basis that they are responsible for the protocol, when it was the previous Administration in the first place.
I rise to speak to the amendments tabled in my name and that of my hon. Friend Colum Eastwood, in which we hope to address some of the issues around consent, protection of the Good Friday agreement, environmental protection and the economy of Northern Ireland, because those are the stated aims of the Bill. While the Social Democratic and Labour party believes that the Bill is damaging, we are in the business of finding and providing solutions, and that is what we have tried to do throughout this process. Our amendments offer a constructive way forward that is negotiated, is compatible with international law, is genuinely square with the Good Friday agreement and is in the interests of the people and the economy of Northern Ireland. Anyone who shares those aims should have no issues with the amendments.
The Minister in fact made the case for a number of our amendments by indicating that the Government have no intention of doing some of the things that we are trying to guard against. I respectfully advise him that taking assurances from this Government, who pinball about on this issue and pinball about on their legal obligations, would be, to quote the SDLP founder Paddy O’Hanlon, like asking Atilla the Hun to mind your horse. We will press ahead with our amendments to try to get some of those commitments in the Bill.
The irony will not be lost on people that in Committee of the whole House, considering a Bill that is supposed to be about stability and consent in Northern Ireland, no amendments will be entertained from elected Members for Northern Ireland. Once again, in Committee of the whole House, Members of Northern Ireland are scrambling to barrel through their points in the scraps of minutes at the end of the debate.
The recent focus on the distortion of the principle of consent in Northern Ireland has been a bit of a political earworm since supporters of the Bill picked it up a few years ago, but it was not always so. Until the plans for a very hard form of Brexit finally collided with reality, Brexit was being presented as a consent-free adventure. My party and others, in this House, in Stormont and through the courts, attempted to insert mechanisms to give a voice to the people of Northern Ireland. They were dismissed by some champions of the Bill, who were adamant that there could be, should be and needed to be no role for people in Northern Ireland and insisted that the Good Friday agreement was irrelevant to these procedures.
The SDLP is content to acknowledge the frustrations of some people, but it is annoying that some of the arguments about consent are “Now you see them, now you don’t”. People are left with the view that the consent of certain parts and certain voters are all that a party is concerned about.
The result of our efforts on consent and the belated acknowledgement of that by others in this House was the insertion of article 18 into the protocol, so it is bizarre that the Bill seeks essentially to override the wishes of the people of Northern Ireland. Under our amendments, once the bulls are allowed into the china shop—as they would be with the extravagant powers that Ministers are being granted in this Bill—the wishes of the people of Northern Ireland would be protected. That would be further enhanced by our amendment 14, which would provide that a Minister cannot harm either the Good Friday agreement or the economic interests of Northern Ireland. Again, that should not pose a problem to anybody who seeks to protect those issues.
In a similar vein, amendment 10 would provide for consultation with human rights groups, business groups and other civic voices before powers are exercised. The Minister made some comments about the sociopolitical impacts and damage in Northern Ireland, and I ask him to clarify that, because bringing in those groups would in fact ensure much more consent and consensus in Northern Ireland.
In addition to consent and protecting the agreements, supporters of the Bill suggest that they seek a negotiated outcome, and we are told that the EU is engaging insufficiently. Our amendment 5 would include in the Bill the requirement that the powers can be used only after good-faith, documented negotiations that are endorsed by this House and by Stormont. It would be useful for us to see exactly what is being discussed—not just that people have tabled the same paper 17 times—and to be allowed to see past the spin to see which parties to the negotiation are in fact moving their position.
With our amendments, we are offering Members the chance to make the protection of the Good Friday agreement, in all its parts, a real and reliable standard, not a vague and variable part-time application. We offer a way to uphold international law and abide by the treaty while using the flexibilities and room for adjustment within the treaty. Instead of the destructive abandonment of the rule of the law in the Government’s clauses, we are outlining a pathway of constructive adjustment, applying both the structures of the protocol and the ethos of the Good Friday agreement.
It has been a splendid debate, and it is my happy privilege to stand as the thorn between two legal roses in my hon. Friend Sir Robert Neill, the acuity of whose interventions has been noted by the House, and my right hon. and learned Friend Sir Geoffrey Cox, the former Attorney General, with his soaring rhetoric and legal genius.
I will be brief. Everyone in this House recognises, I am sure, that it is vital to make the Northern Ireland protocol work better; that the EU, as described and discussed today, has been intransigent and could do with more direct input from our friends and allied member states, France, Germany, Holland and the rest; and that we need an improved and supported political settlement and situation in Northern Ireland. Unfortunately, however, for reasons contemplated and discussed today, and which I will briefly summarise, this Bill is not the answer.
It has been properly pointed out that the doctrine of necessity does not apply in anything like the way the Government describe it. I am not a lawyer, but even I can see that when the Minister concedes at the Dispatch Box that immediacy is not at stake and is not implied by the conception of urgency that the Government wish to deploy. In breaching international law, for the reasons that my right hon. and learned Friend the former Attorney General set out, the Bill breaks the general principle that promises must be kept. However, that is itself an unwritten principle of the British constitution, so this Bill is also a contravention of our constitution. Of course, it appears to breach article 5 of the withdrawal agreement, in which both the UK and EU state that they will faithfully enact the measures to fulfil their obligations arising from the new agreement. Finally, as has been pointed out, the wide powers contemplated under clause 4 are themselves are in clear conflict with the rule of law in the ministerial discretion that they confer.
In principle, this Bill is extremely unwise to say the least, but it is also, just in pragmatic terms, misguided and likely to be counterproductive. As my right hon. and learned Friend mentioned, there is no long-term solution to be reached by a unilateral attempt to impose one side’s will on a shared international treaty. Of course, there is no reason to think that this will change the EU’s behaviour in relation of Northern Ireland. Why should it? The EU’s concern is that the UK has been untrustworthy, and far from allaying that concern, the Bill actively reinforces it. If the EU made a concession in response—if by chance it struck a new agreement with the UK on the basis of the pressure supposedly conferred by this legislation—why should it believe that the UK would then abide by such an agreement? That whole rationale would already have been destroyed. Of course, for reasons already discussed today, this is merely the beginning of the potential trouble involved.
Sir Jeffrey M. Donaldson properly talked about the integrity of the United Kingdom, and he was absolutely right to flag that up. However, another kind of integrity is at stake here: the integrity of our overall British patriotic desire to project ourselves as a nation with a historic willingness to lead in matters of reputation and international law. That integrity is being put at risk by this piece of legislation.
I am not going to support amendment 1, tabled by my hon. Friend the Member for Bromley and Chislehurst, not because it is not a perfectly fine piece of drafting, but because this Bill is unamendably bad, in my judgment. I very much hope that this House will not see it through, and that if it does, the Bill will be rejected on Second Reading by the other Chamber.
It is a pleasure to follow Jesse Norman, and I completely agree with him. I and the Liberal Democrats intend to vote against this Bill when it eventually comes to its Third Reading. I will speak today particularly to new clause 8 and its paving amendment 26.
First, however, I want to put on record my huge disappointment that the Bill is in Committee today because, since Second Reading, we have had a lame duck Prime Minister and a Foreign Secretary who cancelled her meeting with G20 leaders in Bali, where she should have been, and instead came back to start her leadership campaign. This Bill is an incredibly controversial move, and it would have been right and proper for it to have gone away for a while—under the definition of “urgent” that the Minister put forward, that would have seemed to make sense—and then come back when it is clear what direction the Government really want to take. Make no mistake, this Bill is going to affect our standing on the world stage.
My amendments relate to the release of the legal advice. It is absolutely right and proper that the Conservative leadership election has turned our eyes to honesty, integrity and, in particular, trust following what has happened with the current Prime Minister, and that is what my amendments do. They ask the Government, “What have you got to hide?” If there is nothing to hide, they should publish the full legal advice and trust this House to scrutinise it properly.
I urge Government Members to look carefully at what the Attorney General has said since giving her advice on this Bill, because she is also running to be leader of the Conservative party, and she has suggested pulling out of the European Court of Human Rights. As we know, the Court underpins the Belfast/Good Friday agreement. The Attorney General does not seem to understand how that correlates with the Good Friday agreement, yet we are relying on her legal advice. I would suggest that that is nothing we can rely on. We understand from newspapers that the Government shopped around for legal advice, and reportedly they even spoke to a former adviser of President Trump. However, if they have nothing to hide, they should publish the advice.
In the Minister’s response to my question earlier, he said the Government may well go to litigation over this and may well be taken to court over the definitions in relation to the doctrine of necessity. As a reason for advice not to be published, he said:
“We know that, famously, from the Labour Government a couple of decades ago, when there was an enormous controversy about that.”
That suggests that we should not see the legal advice because of what happened following the release of the advice on the Iraq war, but we know from the inquiry that that is nonsensical because the Government in that case did have something to hide and were found out later. If this Government want to get the trust of Parliament and do not want to have egg on their face in the international courts, they should release the advice. I urge them to support amendment 26, which I hope—by your leave, Dame Eleanor—we can push to a vote later.
We are now nearly three hours into the debate and we have not named what the actual problem is. The honest truth is that the problems did not start with the protocol; the problem is Brexit and the necessity of the protocol. For the avoidance of doubt, to acknowledge that Brexit is the problem is not to say that we do not need to change the protocol, it is not to call for us to rejoin the European Union and it is not to call for a second referendum. It is to recognise that selective democratic deafness when trying to discuss what we need to do will continue to damage all our opportunities unless we recognise that there is not a protocol solution that is as perfect as the previous trading arrangements we had.
The risk is that this Bill will make a bad situation worse, like someone having a bad tattoo and taking a blowtorch to it to try to get rid of it. The Government are like the drunk at a party spilling red wine everywhere and then deciding that throwing white wine after it is the solution. That is what this Bill is, which is why Members need to stop saying, like Homer Simpson, that Brexit is a “crisotunity” and recognise that problems are coming from the opportunities they are looking for. There are problems for civil servants who have to go through 2,500 pieces of legislation, and problems for our constituents, especially if the Bill goes through and we have a trade war with Europe. That will hit everybody—not just those in Northern Ireland, but people in my constituency. There are problems caused by the fact that the EU has already launched legal action and could “restrict co-operation”, and problems for the 33% of businesses that have already given up trading with the European Union, including those mentioned by Sir Jeffrey M. Donaldson—I am sorry he is not in his place to talk about these things. [Interruption.] I apologise; he has moved and I could not see him.
We knew these problems were going to happen, yet the Government have done nothing other than introduce this Bill to make things better; they look only to provoke and to make things worse. We talked about oven-ready deals, yet the Foreign Secretary says that the problems were baked in. Frankly, Mary Berry would see the Bill as having a soggy bottom because it is so rubbish.
The report by the Bingham Centre for the Rule of Law states clearly that the Bill is in breach of international law, and that is why I tabled new clause 7. I hope the Minister will recognise that simply repeating again and again, as the legal memorandum does, that the Government believe that the Bill meets the test of necessity under international obligations, without explaining how, is not tort, it is just a tautology. We cannot say something is necessary and not say why it is necessary, or whether the conditions might change—I agree absolutely with Jesse Norman on those matters. We know there are things we could do to make that clear, and at least to take back control—after all, the Government said that Brexit was about democracy, but it is turning out to be about Downing Street instead.
New clause 10 would ensure that the Government act within international law. New clause 7 is about evidence that we are acting within international law, and about explaining to our constituents why it would be necessary to take such extreme measures. As the Hansard Society tells us, the Bill is breathtaking in the additional powers it takes and the exercise of those excessive powers, with 19 delegated powers under 26 clauses—I have never seen anything like it in this place in the past 12 years. Those powers are based on ideas that Ministers consider “appropriate”, just as they consider what is “necessary”. As we have seen today, however, they cannot really define what “urgent” means. Most people would recognise that “urgent” probably means “immediate”, rather than “sometime in the future.” Considering that any provision can be made by an Act of Parliament, as Sir Robert Neill recognised, if we allow that with the Bill, we could see it for other Bills—literally taking back control from these Benches and sending it to the road opposite.
Finally, there is no way that the Bill supports the Good Friday agreement, which, in and of itself, is an international agreement. We want to stand and challenge President Putin as he rips up the rule of law, yet we say that there are rules of law that we think no longer apply to us. How can we say that we will also guarantee the protections of the Good Friday agreement? How can we give the constituents of the right hon. Member for Lagan Valley the certainty they want, and that we recognise they should have, to be able to go about their business and have peace and prosperity, if we act as if the rule of law does not matter or can be bent to shape the will of a particular political movement?
The Bill is about the Government needing Europe to be a bogeyman, and as we have seen from the leadership contest, there are bogeymen aplenty. In reality, this can do only harm. We must recognise that the problem does not start with the protocol. The problem starts with Brexit, and how we negotiate a trade agreement and deal with the problems that arise from leaving the single market and customs union. Our constituents in every part of the United Kingdom deserve that honesty. New clause 7 is about Governments being honest, and just as new clause 10 should not have needed to be tabled, nor should new clause 7, but it did need to be tabled under current circumstances. The people who rely on this place to make reasonable regulations, to admit their problems, as though they were 12-step problems, and to make amends, need and deserve nothing less.
Why is the Bill necessary? That is what the Committee has just been asked. That is the question. Well, the preamble to the protocol states clearly that its objective is to uphold the Belfast agreement. Why is its objective to uphold the Belfast agreement? Because the Belfast agreement creates something called power sharing. Power sharing has clearly broken down. Some people may not like the reasons for that, but it has broken down, therefore the Bill is necessary. It is as plain and obvious as that—perhaps we have to say it slower for some people to pick up on the reality that power sharing has broken down, and therefore the Bill is necessary. Do not take my word for it: last week in the Select Committee on Northern Ireland Affairs, two international lawyers gave us expert evidence. I think there is only one international lawyer in the Chamber today, Sir Geoffrey Cox, who has stated his position. I respect those opinions, but I do not think there has been any other international law expert or practitioner in the Chamber. I can therefore only quote from experts who have given the Committee their expert opinion through the Northern Ireland Affairs Committee.
Professor Alan Boyle from Edinburgh Law School and Professor Hestermeyer from King’s College London have made clear that a derogation in the law—a law change—in an effort to restore power sharing is, in Professor Boyle’s words,
“lawful, legitimate and entirely consistent with the protocol” and with international law. That is the expert opinion that has been afforded to Members through the Select Committee process of this House, so if people are asking why the Bill is necessary, they should read the evidence. It is clear: power sharing has broken down because of the protocol, and Unionists will not go back in and share power until it is fixed. Therefore, the way to fix it is through legislation. We have that legislation in front of us. That is why it is necessary—it is pretty obvious to anyone who is following this.
Yesterday, we had the great, glorious
Someone asked, “What damage has really been done?” The Consumer Council of Northern Ireland has said—these are not my words—that 65% of Northern Ireland consumers cannot get goods that they order because of the protocol. If people are asking about damage, it is plain and obvious for everyone to see—consumers cannot get British goods in a part of the United Kingdom—and it is pretty obvious why that damage is being done.
Some of the amendments that have been tabled fall into what I can only call the can-kicking mode: “Let’s kick this can further up the road, and we’ll see if we can get more negotiations.” As the Minister for the Cabinet Office made very clear, there has been a year and a half of negotiations—hundreds of hours of negotiations. We have run out of road to kick the can up, and the can is battered to death. It will not kick any further. If this House does not get its skates on and get this matter through Parliament ex post facto, we are going to be in even deeper trouble. There really will be something called peril in Northern Ireland, because people will just accept that this House is not able to fix the problem. Unfortunately, when those circumstances are presented in Northern Ireland, I am afraid that other factors take over.
I will briefly place on record the comments of Professor Boyle and Professor Hestermeyer. Professor Boyle said to the Northern Ireland Affairs Committee that the proposed legislation
“does not violate international law. It does not violate the protocol. I have heard people who should know better saying that it does, but I am afraid that they are wrong. They are obviously not international lawyers.”
He went on to say:
“The Government are proposing to derogate from those articles, and article 16 allows them to do so, where they consider it necessary in one of three circumstances. The one that is relevant here is societal difficulties” which are now obvious for all to see. He finishes with the words:
“If the collapse of power sharing in Northern Ireland is not a societal difficulty, I do not know what is.”
So it is very, very clear that there is a necessity. Society has broken down. The political arrangements have broken down. We cannot get stability rebuilt and re-engineered in Northern Ireland until this matter is addressed.
I appeal to those Members searching for perfection that they will never find it. This House never does anything perfect. But we are stepping in the right direction. Let us keep taking those steps in the right direction.
We clearly have a problem, the absence of the Assembly and the Executive, and the cause is the operation of the protocol. I have said many times to European colleagues I have spoken to that the Commission needs to move in the negotiations. But one of the consequences is that we now have an absolutely terrible relationship with our biggest, nearest and most important trading partners. That is one reason why this is an extremely unwise Bill.
The honest answer to some of the questions that have been put in the debate is that there is not an easy answer because of the contradictions inherent in Brexit, the point my hon. Friend Stella Creasy made so eloquently a moment ago, although one of the consequences is that Northern Ireland, alone in the United Kingdom, has access to the single market of the European Union as well as to the market of the rest of the United Kingdom.
The reason for me why the Bill is so egregious is that the Government have chosen to pursue it when they have a means of taking the problem to the European Union in the form of article 16. One wonders what the negotiations were like when article 16 was drafted. “What if we have a disagreement about the way the protocol works? Let’s set up a mechanism for dealing with it.” Yet the Government have refused to use it. When I asked the Foreign Secretary why, she said she was a patriot and a democrat. Those are two very worthy things to be, but that is not a reason for abrogating a treaty you have negotiated and signed. It is a long time since I said this to Sir Geoffrey Cox, but I agree completely with the argument he made as to why this is not something the Government should do. It is damaging our relationship and I do not think it will solve the problem.
The Bill is very clever. It is very well drafted and it is a unilateral switch that allows Ministers to turn stuff on and off. That is what it does. Clause 15, which has been part of this debate, contains, in the words of the seventh report of the House of Lords Delegated Powers and Regulated Reform Committee
“a power of the sort we rarely see—a power that in essence allows Ministers to rip up and rewrite an Act of Parliament.”
The Government claim that is necessary because things may come along that they want then to exclude, but there is a point of principle here. If Ministers decide that an Act of Parliament is not working in the way in which it was intended, they should come back to Parliament and Parliament should look at it, rather than Ministers saying, “In that eventuality, I want to take powers to do it by delegated legislation.”
Clause 15(1) lists a series of purposes for which the powers can be used. With no irony, one of the purposes—I could not believe it when I read it—is:
“securing compliance with, or giving effect to, any international obligation or agreement to which the United Kingdom is a party”.
The Government have tried to be virtuous in writing that in, but they then say that there is one exception to that, which is the EU withdrawal agreement and the protocol.
On article 18 of the withdrawal agreement itself, I note the commitment the Minister gave from the Dispatch Box. I urge him, for the avoidance of all doubt, to write that into the three specific exceptions. He has done it for the rights of citizens and the other two, and I advise the Government to put it in there for the avoidance of all doubt.
Along with many Members, I voted against the Bill on Second Reading. I think that it is beyond repair, as has been said, but that does not mean that we should not vote for things that will make it slightly less egregious. That is why I support the amendments tabled by Sir Robert Neill and new clause 10, which was advocated for so ably by my hon. Friend Peter Kyle, who speaks for the Opposition on Northern Ireland matters.
Today in my constituency, more than 100,000 people will gather in the small, rural village of Scarva for what is the largest parade of the year and what many believe to be the biggest one-day festival in the whole of Europe. It is a fantastic day of colour, music, pageantry and tradition—a celebration of civil and religious liberty for all. I am very sorry to miss it, but I know that those gathered there will be very supportive of what I am in this place to say about the Bill and the protocol. They would want me to reiterate that the Irish sea border must go.
It has been encouraging in recent days to hear some of those who have declared that they are standing to be our next Prime Minister state that they are committed to the Bill. Furthermore, it is welcome to hear from the new Secretary of State—I wish him well in his post—that his priority is to see a Northern Ireland Executive restored. Indeed, we share that priority.
The pathway to the restoration of a fully functioning Assembly and Executive at Stormont is through the Bill, the removal of the sea border and a return to the consensus politics that has been the trademark of our political progress to date. I therefore feel compelled to draw attention to a number of amendments in the names of—but not exclusively—the hon. Members for North Down (Stephen Farry), for Belfast South (Claire Hanna) and for Foyle (Colum Eastwood). Amendments 3 to 5 and new clause 7, which move to restrict the operation of the Bill unless it is approved by the Northern Ireland Assembly, make no mention of cross-community consent, meaning that they are clearly majoritarian in outlook.
The Committee understands that, in Northern Ireland, when one community feel ignored or marginalised or that their views are downtrodden, it brings tension and instability. It is a matter of deep regret that the parties who, for years, have preached consensus and consent now appear to want to tell Unionists that their views do not matter. “We shall overcome” has become “We shall overrule”.
The consequences of such an approach will be vast and extremely damaging. I cannot be clearer on the consequences: Stormont will not come back; community relations will further deteriorate; and the progress made on the basis of consensus will be ruined. No one with a shred of political leadership or responsibility would want that. That is why the amendments that prerequisite approval of the Northern Ireland Assembly must be rejected.
In the time remaining, I turn to the amendments that suggest that EU approval ought to be secured prior to the Government acting or the article 16 provisions being followed. Are those who have tabled such amendments aware that we have reached this point because such agreement has not been possible? The EU position is crystal clear—no renegotiation—yet Members of this House, who are elected to serve the interests of this country and its people, are handing a veto to the EU.
This Government were elected on the back of wanting to “take back control”. Any Government that would accept such amendments would be doing the reverse. It is disappointing, but the amendment paper can be seen for what it is: a wreckers’ charter—to wreck not only the Bill, but our political process in Northern Ireland. I urge the Government to reject the amendments.
Thank you, Dame Eleanor, for the opportunity to speak for all of a minute or thereabouts.
The Bill is not perfect in any way, but it is the Bill before us. We have to support it, because it makes us as British as England, Scotland and Wales, which at the moment we are not. I am very mindful that Northern Ireland has been the football that everybody has kicked about, so it is important for us to see a Bill coming forward that gives us a chance to make a change. All my local businesses, or 99.9% of them, say that they are disadvantaged by what is in place. The fishing fraternity in Portavogie, Ardglass and Kilkeel says the same thing about tariffs, bureaucracy and red tape, and so does the farming community.
Many hon. Members have said today, mischievously, that this is about Brexit. For us, it is about being British. I want to be as British as every Member on either side of the Committee who wants to be British, but it is more important for me to see a Bill coming forward that will make that happen. I urge right hon. and hon. Members to agree to go forward and support us in Northern Ireland, because this is the way to do it.
This has been a most useful debate. I will not press my amendment 1 to a vote tonight, because amendment 2, which is scheduled for debate on the third day of Committee proceedings, will permit the Committee to revisit the topics if matters develop.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 26, in page 1, line 3, at end insert—
This is a paving amendment for NC8.
Question put, That the amendment be made.
The Committee divided: Ayes 231, Noes 313.
Question accordingly negatived.
More than three hours having elapsed since the commencement of proceedings, the proceedings were interrupted (Programme Order,
The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (
Clauses 1 to 3 ordered to stand part of the Bill.
Amendment proposed: 8, in clause 15, page 9, line 15, at end insert—
“(d) Article 18 (Democratic Consent in Northern Ireland)” —(Colum Eastwood.)
This amendment adds Article 18 (Democratic Consent in Northern Ireland) of the Northern Ireland Protocol to the list of articles that a Minister of the Crown cannot exercise powers conferred by subsection (2) to provide cease to have effect in the United Kingdom to any extent.