22:44 - The Committee divided: - Ayes: 255 / Noes: 346 - Question accordingly negatived.
22:59 - The Committee divided: - Ayes: 6 / Noes: 350 - Question accordingly negatived.
23:16 - The Committee divided: - Ayes: 332 / Noes: 257 - Question accordingly agreed to.
23:30 - The Committee divided: - Ayes: 338 / Noes: 254 - Question accordingly agreed to.
The Minister of State, Northern Ireland Office (Mr Robin Walker)
Thank you, Mr Evans. I am pleased to be opening this detailed consideration of part 5 of the Bill, which deals with matters relating to the Northern Ireland Protocol. I welcome this opportunity to discuss these provisions and the important issues they raise in depth today. Before I turn to the specific clauses and amendments in this group, let me begin by making it clear that the Northern Ireland protocol to the withdrawal agreement is designed to recognise and protect the needs and unique circumstances of Northern Ireland. Central to that is ensuring that the Belfast/Good Friday agreement, its successor agreements, and the gains of the peace process are protected. But, above all, we must ensure that the delicate balance between all communities in Northern Ireland is maintained and that the UK Government pursue policies for sustained growth and stability in Northern Ireland. Those have always been and will remain this Government’s priorities.
Through this Bill, we are acting to uphold those priorities and deliver the commitments we made in our election manifesto that we would provide unfettered access between Northern Ireland and Great Britain and
“maintain and strengthen the integrity and smooth operation of our internal market.”
The protocol also explicitly depends on the consent of the people of Northern Ireland for its continued existence. As we implement the protocol, that must be kept in mind. Those commitments are, of course, entirely in accord with the protocol itself, which makes it clear that, among other things, Northern Ireland remains part of the United Kingdom’s customs territory, that nothing in the protocol prevents unfettered access from Northern Ireland to the rest of the UK market, and that in its application the protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland.
John Redwood (Wokingham) (Con)
Will the Minister confirm that if the European Union kept its promise in the political declaration of a free trade agreement, many of the troublesome issues would drop away and all would work smoothly?
Mr Walker
My right hon. Friend is of course right about that, and we still hope to strike a free trade agreement with the EU. I also point out that these issues can and should be resolved through the Joint Committee—I will come back to that.
Both the UK and the EU signed up to the protocol on the basis I just outlined. We are committed to implementing the protocol and we have been working hard to ensure that it is done in a way that delivers the promises that have been made. That includes working with the EU to reach agreement through the Joint Committee process in a number of areas that the protocol left unresolved, and we very much hope that agreement can be reached shortly. But if it is not, the harmful legal defaults contained in some interpretations of the protocol, which were never intended to be used, would be activated. The consequences for Northern Ireland in that scenario would be very damaging. We cannot and will not run that risk.
The provisions we are considering today will therefore ensure that in any scenario, we will protect Northern Ireland’s place in the United Kingdom; ensure that businesses based in Northern Ireland have unfettered access to the rest of the United Kingdom; and ensure that there is no legal confusion or ambiguity in UK law about the interpretation of the state aid elements of the Northern Ireland protocol.
Mr Walker
I will give way to the right hon. Gentleman in a moment, because I do intend to refer to some of his comments in my speech, and I will happily take his intervention shortly.
Further measures will be set out in the Finance Bill. These will have the same effect as those already proposed in the UKIM Bill, and will make it clear that no tariffs will be payable on goods moving from Great Britain to Northern Ireland unless those goods are destined for the EU market, or there is a genuine and substantial risk of them ending up there. We will take the necessary powers in the Finance Bill to ensure that this is defined in a reasonable and proportionate way, which ensures that legitimate traders are not penalised, while also resolving the outstanding issues relating to the payment of VAT and excise duty. So we are taking limited and reasonable steps through the legislation to create a legal safety net by taking powers in reserve, whereby Ministers can guarantee the integrity of our United Kingdom and ensure that the Government are always able to deliver on their commitments to the people of Northern Ireland in line with the three-stranded approach of the Belfast/Good Friday agreement.
Jim Shannon (Strangford) (DUP)
I declare an interest as a member of the Ulster Farmers Union, which has contacted me, and it says:
“there will be a total amount under the NI protocol that will be a maximum we can give to agriculture in the form of support and there will be a certain percentage that we could give as coupled support.”
It clearly sees that less state aid will be available for Northern Ireland and we will be treated differently from Scotland, Wales and the rest of England. Does the Minister of State agree with that?
Mr Walker
I will come in detail to the amendment tabled by the hon. Gentleman’s party later in my speech, but I do recognise that when it comes to state aid, we have made specific agreements under the protocol on goods traded between Northern Ireland and the EU, and we should stick to those in order to ensure the effective functioning of trade north, south, east and west. We are taking steps in the Bill to clarify the state aid elements, and some of those will be to the benefit of businesses in Northern Ireland. I will come back to that point in more detail.
Mr Walker
If I may, I will come to the right hon. Gentleman’s point very shortly, and then I will happily give way to him.
We would not take these steps lightly. We hope it will never be necessary to use these powers, and we would do so only if, in our view, the EU was engaged in a material breach of its duties of good faith or other obligations. We would, of course, always activate appropriate formal dispute resolution mechanisms with the aim of finding a solution through this route in parallel to any domestic legislation. I draw the Committee’s attention to the statement that the Government made on 17 September .
Jeremy Wright (Kenilworth and Southam) (Con)
Can I ask my hon. Friend to go just a little further than he has just gone? He has explained already that the Government may end up in a position where entirely outrageous behaviour on the part of the EU might lead to a conclusion that no Government could possibly accept. Can I ask him to confirm that in those circumstances the Government would explore to the fullest all the options available to them within the withdrawal agreement before resorting to any breach of international law outside the withdrawal agreement—accepting, of course, that there would come a time when if the Government did not act unilaterally it would then be too late to do so?
Mr Walker
I absolutely hear what my right hon. and learned Friend has said, and I draw his attention to the words of the Prime Minister, who said that we would simultaneously pursue every possible redress under international law, including those provided by the protocol. In those circumstances, in addition to our steps under domestic law, we would—if we had to—make it clear that we believed that the EU was engaged in a material breach of its duties in good faith as required and provided for under the withdrawal agreement and the Vienna convention on the law of treaties.
Sammy Wilson (East Antrim) (DUP)
This is a very important issue. If it is the case that, before the Government introduced the measures contained in this Bill, or those the Minister has promised will be contained in the Finance Bill, he would first pursue the avenues that are open through the withdrawal agreement—the Joint Committee, adjudication and finally the European Court of Justice—does he not recognise that that process itself could be so elongated that the economic damage done by the requirements of the EU could be very severe in Northern Ireland?
Mr Walker
The right hon. Gentleman makes a powerful point. That is why we are taking the powers in this Bill, and we would seek the consent of the House before those powers were exercised—it is to ensure that there is a legal default different from the one that he suggests. It is about taking these steps in parallel.
I want to recognise the significant concerns that many Members have raised, which is why we have agreed that a “break glass” provision should be included, requiring the House of Commons to give its approval before these measures are commenced. I will return to the detail of that shortly, but the Committee should be in no doubt that this Government will always seek to ensure that the Belfast/Good Friday agreement is protected and that the political and economic integrity of our United Kingdom is maintained. That is what the Government amendments in this group seek to achieve.
Clauses 11, 40 and 41 of the Bill give effect to the Government’s commitment to give unfettered access to Northern Ireland goods to the whole UK internal market, in line with the protocol. They will ensure that we protect the vast majority of the £8.1 billion of goods sales from Northern Ireland to Great Britain and guarantee Northern Ireland’s place in the UK’s internal market. That will provide vital legal certainty for businesses in Northern Ireland, whose largest market is the rest of the United Kingdom—56% of Northern Ireland’s goods trade is with Great Britain—and deliver on a promise that has been repeatedly made throughout the process of our exit from the European Union.
Clause 11 sets out that qualifying Northern Ireland goods will benefit from mutual recognition and are not discriminated against. It ensures that the mutual recognition principle will apply to all such goods that will also benefit from unfettered access under clause 40. Clause 40 ensures that, in implementing the protocol, authorities must have special regard to the fundamental need to maintain Northern Ireland’s integral place in the UK’s internal market and customs territory and to facilitate the free flow of goods between Northern Ireland and Great Britain. That, of course, applies to trade between Great Britain and Northern Ireland in both directions.
Clause 41 ensures that there will be no new checks, controls or administrative processes on goods moving from Northern Ireland to Great Britain. This clause is in keeping with what the Government have constantly said, including in our manifesto, and in line with our commitments to businesses in the “New Decade, New Approach” agreement.
Clauses 42, 43 and 45 set out the safety net that I have described. Clause 42 ensures that full unfettered access is guaranteed in any scenario by providing a power to disapply or modify the requirement for export declarations or other exit procedures when goods move from Northern Ireland to Great Britain. As the right hon. Member for Leeds Central (Hilary Benn) rightly said on Second Reading, there is no real justification for such declarations being needed to protect the EU’s single market or customs union. It is a wholly reasonable suggestion from the UK that this issue can and should be resolved through the Joint Committee, but if it is not—and this is perhaps where he and I disagree—there needs to be a safety net in place.
Hilary Benn
I am grateful to the Minister for giving way on that point. I want to press him on the safeguard measures that are provided in article 16 of the protocol and the extent to which they enable the Government to take action if they think the EU is being unreasonable. There is a one-month waiting period, but after that, the Government are able to take safeguard measures. Annex 7(5) goes on to say:
“The safeguard measures taken shall be the subject of consultations in the Joint Committee every 3 months”.
Could he clarify what would cause those safeguard measures to come to an end? Would it be a decision of the arbitration mechanism that the Government lost? Could it then go to the European Court of Justice? In other words, could he explain why what the Government negotiated to protect the country from bad faith action by the EU is insufficient? We have not had an answer to that question.
Mr Walker
We are talking about the question of legal default. The UK Government are responsible for their implementation of the protocol, and we want to ensure that we have the necessary powers in UK law to avoid those legal defaults. As I have said, we would initiate all necessary proceedings in international law, including those under the protocol, if necessary, at that stage. It is not a stage that any of us want to get to, and we still hope to resolve these issues through the Joint Committee.
Mr Mark Harper (Forest of Dean) (Con)
There is a way of reconciling the points made by my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright) and the right hon. Member for Leeds Central (Hilary Benn). Under the amendment that the Government have tabled, which my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) paved the way for, is it not the case that Ministers would have to come to this House and make a case that it found compelling before they could use these powers? As the Bill was formerly drafted—this is why so many of us had concerns about it—Ministers could have made those resolutions under the affirmative procedure, and the powers would have come into force before any of us had a say. Under the amended Bill, Ministers would have to come to the House in advance, make the case and win not only the argument but the support of this House. That should reassure us all that these powers will only be used when absolutely necessary.
Mr Walker
My right hon. Friend is absolutely right. I was going to come in more detail to the amendment tabled by our hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, and the Government’s amendment in response, but my right hon. Friend is absolutely right in what he says, and that should provide significant reassurance to Members across the House.
Several hon. Members rose—
Mr Walker
I will make a little progress.
Clause 42 is in keeping with what the Government have constantly said, including public commitments from the Prime Minister, our manifesto commitments and commitments to the people of Northern Ireland. It is clear from the protocol that it is for the UK to implement unfettered access. Declarations of the sort that would be disapplied through this clause would be contrary to the recognition in the protocol that Northern Ireland is part of the customs territory of the United Kingdom.
Clauses 43 and 44 provide a similar safety net in the case of EU state aid rules that will apply in the UK by virtue of the protocol. Clause 43 gives the Secretary of State the ability to ensure there is no ambiguity in UK law about the interpretation of article 10 of the protocol, which provides that EU state aid rules will apply in respect of goods and electricity traded between Northern Ireland and the EU. A clear interpretation of how they will apply may be needed in the interests of legal certainty for both public authorities granting subsidies and companies throughout the UK receiving support. There is a risk that a maximalist interpretation of article 10 of protocol by the EU, which was never intended but is none the less a risk we must protect against, could give the European Commission extensive jurisdiction over subsidies granted in the rest of the UK, known as reach-back. All the subsidies granted to the services sector in Northern Ireland could be caught even if there is no link, or only a trivial one, to a goods provider.
Ian Paisley (North Antrim) (DUP)
Absolute clarity and certainty is required on this state aid issue. For example, will traders in Northern Ireland be able to benefit from subsidy paid by the EU, will they be able to benefit only from subsidy paid by the UK, or will they be able to benefit from both? If it is both, that would certainly address the issue of the best of both worlds, but I think it is an absolute nonsense, because it will not be allowed to happen. Can the Minister clear up that matter immediately? Will the European Union, or our predatory neighbour to the south of Ireland, be able to stop Northern Ireland benefiting from free ports that could be given to Northern Ireland? Would they be able to block that? Clarity on those issues is absolutely essential.
Mr Walker
The hon. Gentleman raises some important points. It is for the Secretary of State for Business, Energy and Industrial Strategy to use the powers in the Bill to take further steps in setting out the UK’s state aid policy. As the hon. Gentleman will recognise, the UK also has a policy on free ports, which we absolutely want Northern Ireland to be part of, so perhaps that is for future debates.
Let me be clear: the Government’s position is that EU state aid rules will apply in Northern Ireland as long as the protocol is in place in respect of goods and electricity, as agreed, but we have to give businesses the certainty that they will not face the destabilising prospect of the European Commission applying its state aid rules to companies in Great Britain with no link, or only a trivial link, to Northern Ireland. The power in the Bill allows the Business Secretary to make provision for how article 10 is to be interpreted for domestic purposes.
Mrs Theresa May (Maidenhead) (Con)
My hon. Friend has been setting out throughout his speech that the Government want clauses 41 to 45 because of the bad consequences that could come from an interpretation of the withdrawal agreement. If the potential consequences of the withdrawal agreement were so bad, why did the Government sign it?
Mr Walker
As my right hon. Friend knows well, the withdrawal agreement was negotiated by the UK and the EU and agreed with a view that certain elements would be resolved by the Joint Committee. I think there was a reasonable expectation on both sides that the Joint Committee would have made more progress on those issues, but unfortunately we have heard some harmful interpretations over the past few months. The point of these Government clauses is to ensure that we can rule those out and put in place the appropriate legal default.
Stephen Farry (North Down) (Alliance)
Surely the Government’s approach is self-defeating in the following respect? Ministers rightly outline that a range of issues are still to be resolved through the Joint Committee. For that, we need to prove to the European Union that the UK can be trusted if various derogations are granted to the UK, but if we pass legislation that still contains even the merest threat of breaching the existing agreement, why would the EU be flexible and give us that trust as we will not have shown the ability to follow through with other previous agreements?
Mr Walker
I have to say to the hon. Gentleman that we have consistently followed through with our agreement. We have done that with the delivery of protocol requirements when it comes to the legislation for the dedicated mechanism and to citizens’ rights, and we will do so regarding EU state aid rules applying in Northern Ireland in respect of goods and electricity as agreed.
Mr Walker
I will make a bit of progress and take an intervention from my hon. Friend later.
Clause 44 establishes a statutory requirement that no one besides the Secretary of State may notify the European Commission of state aid where the UK is required to do so as a consequence of article 10. That codifies in legislation the existing practice where aid is notified by the Foreign Secretary via the UK mission in Brussels and will ensure that a uniform approach to the state aid elements of the protocol is taken across the UK.
Sir Edward Leigh (Gainsborough) (Con)
The objection seems to be that we may have to act in this way, but we do not want to break international law. Has my hon. Friend noted my amendment 45, which shows a way through? Under the Vienna convention, which is already mentioned through the conditional interpretative declaration, if another party is acting in bad faith, we can use the declaration to escape from an impossible situation. Will the Minister at least look at that amendment?
Mr Walker
I will look at my hon. Friend’s amendment. I will come to amendments shortly—I realise that I need to make some more progress in addressing the many amendments we face. We do not consider necessarily that a unilateral interpretative declaration would be required, although as I said, we will use all the tools at our disposal to resolve the issue within the terms of the protocol before using the powers in the Bill. If that is one that we considered would help, we would not hesitate to use it, but we do not see the need for the amendment in that respect.
For the avoidance of doubt, let me confirm again that we are of course committed to implementing the withdrawal agreement and the Northern Ireland protocol, and have already taken many practical steps to do that. However, as a responsible Government, we cannot allow the gains of the peace process or the economic integrity of the UK’s internal market to be compromised inadvertently by unintended consequences and harmful legal defaults suggested by some interpretations of the protocol.
Finally, clause 50 disapplies certain provisions of the UK Internal Market Bill in the scenario that Northern Ireland’s representatives resolve, under the protocol’s consent mechanism, that articles 5 to 10 of the protocol should cease to apply. This is a practical step to account for and respect the principle of consent enshrined in the protocol. The protocol itself is not codified as a permanent solution for Northern Ireland, and neither should it be in the domestic legislation that implements it. Taken together, these clauses deliver on our commitments to Northern Ireland.
I want to address the amendments as briefly as I can, so I will have to be limited in the number of interventions I will take.
Alan Brown
I thank the Minister for giving way. If we go back to the legal defaults that he says were never envisaged to be enacted, will he explain why plenty of people in the House pointed out that these were the very scenarios that could come about because the agreement was signed? Will he also explain why the EU is acting in bad faith by upholding an agreement that the Prime Minister himself said was a fantastic deal for Northern Ireland? Finally, can he explain what happened to this magical technological solution that the Government said they were working on that would prevent all this?
Mr Walker
I take no lectures from the SNP on this issue. It is clear that the reason why the SNP opposes the withdrawal agreement is that it opposed our leaving the EU in the first place. With regard to the development of technological solutions, I agreed with Michel Barnier when he said that it is important that both sides look at innovative and flexible solutions. When it comes to the future debate in the Northern Ireland Assembly on consent, it may be that technological progress can help with delivery, so I think that many of these arguments stand. We are committed to the protocol and to all our commitments to Northern Ireland, including the unfettered access as part of our United Kingdom.
I turn to two amendments regarding the commencement of these provisions that have been subject to much debate and attention, including a number of powerful and persuasive speeches on Second Reading. Amendment 4, which is in the name of my hon. Friend the Member for Bromley and Chislehurst, the Chair of the Justice Committee, and is signed by my hon. Friend the Member for North Dorset (Simon Hoare), the Chair of the Northern Ireland Affairs Committee, seeks to provide in essence that break-glass mechanism on the key safety net provisions in relation to the protocol by stating that clauses 42, 43 and 45 of the Bill may not come into force until a motion in this House is passed. Since that amendment was tabled, I am pleased that there have been constructive talks between my hon. Friend the Member for Bromley and Chislehurst and Ministers, and the Government have tabled amendment 66, which provides for substantially the same break-glass mechanism, with the additional requirement for a take-note debate in the other place. I hope that that amendment will demonstrate to hon. Members, including the Chair of the Justice Committee, that we are committed to ensuring that any decision to use the powers is explicitly approved by Parliament.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I thank my hon. Friend for the constructive tone that he and members of the Government have adopted in these matters. It enables some of us who otherwise would not have been able to support these clauses to proceed, on the understanding that there is a specific parliamentary lock that bad faith on the counter-party’s side must be proven to the House before these powers are brought into operation, which of course all of us hope will never be the case. I welcome that, and it enables us to support the Government’s amendment.
Mr Walker
I am very grateful to my hon. Friend for that point. A fundamental principle of our constitution, and one that lies at the very heart of our exit from the EU, is that this Parliament is sovereign. As set out in clause 38 of the European Union (Withdrawal Agreement) Act 2020, that means that it can choose to legislate to deliver an interpretation of the protocol consistent with our understanding, while recognising that to do so is a significant step. The parliamentary procedure set out in amendment 66 recognises that, and provides a clearer, more explicit democratic mandate for the use of the powers. I therefore commend amendment 66 to the Committee, and urge my hon. Friend and all Members to support it and not to press amendment 4.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Will the Minister give way?
Mr Walker
Not right now—I will come back to the right hon. Gentleman.
Amendments 64 and 65, in the name of my right hon. Friend the Business Secretary, make it clear that any regulations made under clauses 42 or 43 would, of course, be subject to judicial review, contrary to some of the claims that have been made over recent weeks, while ensuring that any claims must be brought within a three-month period. That ensures that any challenge to the regulations will be subject to a timely resolution before the courts, which is essential to ensure that Northern Ireland businesses and investors in Northern Ireland have the certainty that they need, which is at the heart of the Bill. I commend those amendments to the House. As they clarify the position on judicial review, amendment 44 is not necessary.
Amendments 61 to 63, in the name of my right hon. Friend the Business Secretary, are targeted technical amendments to ensure that the Government are able to maintain the integrity of the UK’s VAT and excise systems and can deal with any threats to biosecurity in Great Britain in response to changes required in Northern Ireland under the protocol.
In particular, the amendments ensure that the Government can act to address cases of double taxation and non-taxation created by the Northern Ireland protocol, as well as to close down opportunities for tax evasion.
The amendments will also ensure that both the UK Government and the devolved Administrations can continue, as they do now, to respond to specific biosecurity threats arising from the movement of animals and high-risk plants. The principle of facilitating actions to protect biosecurity on an ongoing basis between England, Scotland and Wales is already reflected in schedule 1 to the Bill. The amendments simply clarify that similar processes can also apply with regard to Northern Ireland where there is a genuine risk of a biosecurity threat that poses a serious threat to the health of humans, animals or plants.
I commend those amendments to the Committee.
Mr Carmichael
May I take the Minister back to the undertaking that he gave to his hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)? Some of us have some misgivings about that undertaking, because this Government have shown an exceptional fondness for withdrawing the Whip from those in their own party who disagree with them. In the circumstances of the parliamentary lock being necessary, can we get an assurance from the Treasury Bench at some point in this debate that any such vote will be a free vote?
Mr Walker
I will perhaps give way on a point of substance later, but not on that point.
Amendment 41 seeks, among other things, to add a paramount duty to clause 40, requiring authorities to act without prejudice to international and domestic law. Amendment 53 similarly seeks to prevent authorities from exercising functions in a way that is incompatible or inconsistent with relevant domestic or international law. Amendment 52 appears to require the Government to follow the process agreed in the withdrawal agreement as the only mechanism for dispute resolution. Amendments 54 and 55 seek to prevent regulations made under clause 42 from having effect, notwithstanding international and domestic law. Amendment 46 would remove the Northern Ireland protocol from the list of international law that may be set aside, undermining the intent of clauses 42 and 43.
Amendments 57 and 59 would prevent regulations under clause 43 from interpreting, disapplying or modifying the effect of article 10 of the protocol. Clause 43 is a necessary provision that will ensure that the Secretary of State’s interpretation will achieve the correct effect in domestic law.
I repeat that the Government are committed to implementing the withdrawal agreement and the Northern Ireland protocol; however, as a responsible Government we cannot accept any amendments that would undermine the provisions in the Bill and render them no kind of safety net at all, thereby risking the compromising of the UK internal market’s economic integrity by unintended consequences or harmful defaults contained in some interpretations of the protocol, or creating confusion or uncertainty about the position in domestic law. I therefore urge right hon. and hon. Members to withdraw the amendments.
Gavin Robinson (Belfast East) (DUP)
The Minister invites us to withdraw the amendments. This is the second occasion in the past week on which a Minister has stood at the Dispatch Box and held up an olive branch of potential amendments or provisions that will be brought forth in the Finance Bill. We have not seen the text of those potential provisions and we do not know their content. I invite the Minister to go a little further and explain why we should withdraw the amendment at this time, given the verbal assurances he has offered.
Mr Walker
I absolutely hear the hon. Gentleman’s concerns. I have made the point about what we have said in the Command Paper and what the Prime Minister has referred to in respect of the Finance Bill.
Amendment 69 seeks to ensure that there would be no new costs for a Northern Ireland business to access or sell in the market. The UK Government have already committed in legislation to delivering unfettered access for Northern Ireland businesses, including through the Bill, which will apply the principles of mutual recognition and non-discrimination to qualifying Northern Ireland goods, thereby ensuring that they can continue to be sold in the Great Britain market in the same way as now. The amendment is therefore unnecessary.
Amendment 70 seeks to ensure that goods moving from Northern Ireland to Great Britain through Ireland will benefit from unfettered access. I reassure Members that we recognise the importance of trade from Northern Ireland to Great Britain that moves via Dublin to Holyhead. We are currently engaging with businesses and the Northern Ireland Executive on the long-term means for delivering qualifying status for unfettered access. It would be wrong to pre-empt the outcome of that consultation, so the Government cannot accept the amendment.
On amendment 71, the Government have been working and will continue to work closely with the Northern Ireland Executive on the implementation of the protocol, including on unfettered access, but we do not agree that a restriction on the Government’s powers to make regulations effectively would be justified.
We resist amendment 72 on the basis that it is legally unnecessary. The current wording already encompasses distortions of competition between persons supplying goods or services in the course of a business within the UK internal market. Such wording is already sufficient to cover the regulation of subsidies that would have the effect of making Northern Ireland businesses less competitive in the Great Britain market.
Although the Government agree with the spirit of amendment 78, the whole Government are acutely aware of the need to maintain Northern Ireland’s integral place in the UK internal market, which is already referenced many times elsewhere in the Bill, so we do not believe the amendment is necessary.
On amendment 79, I understand Members’ concerns and support mutual recognition and the non-discrimination principle, but the exception to mutual recognition that we have introduced for chemicals is there to allow the relevant authorities to respond to local factors. Authorisations granted by the EU after the end of the transition period will not take local conditions into consideration. I emphasise that the authorisations relate to the use of substances of very high concern. It is important that the Government and devolved Administrations can take local factors into account when they decide how to protect human health or the environment from the significant risks posed by such chemicals. I therefore urge Members to withdraw or vote against the amendment.
On new clause 7 and amendment 45, I want to reassure Members that the Bill includes provisions that are there precisely to protect the essential basis of the peace process, by ensuring that, regardless of whether further agreement is reached in the negotiations, there will be no hard border between Northern Ireland and Great Britain, and that Northern Ireland businesses will continue to benefit from unfettered access to the rest of the UK market when the transition period ends.
I can also reassure hon. Members that our commitment to protecting the Belfast/ Good Friday agreement of course includes protecting north-south co-operation in areas specified under that agreement, and the protocol is clear on that. That commitment is already enshrined in UK legislation: in section 10 of the European Union (Withdrawal) Act 2018, and through our continued support for this strand of the Belfast/Good Friday agreement throughout the process of exiting the European Union.
Colum Eastwood (Foyle) (SDLP)
Can the Minister explain how people in Northern Ireland can have any confidence that this Government, who said only the week before last that they would break international law, will not break or undermine the Good Friday agreement, which of course is an international treaty?
Mr Walker
As I have said repeatedly, we are absolutely committed to the Good Friday agreement, and I can give the hon. Gentleman an illustration of that in UK law on the very next clause. I can assure him that amendment 48 is simply unnecessary. The protocol guarantees that there will be no hard border on the island of Ireland under any circumstances. We are fully committed to delivering on that and no power in the Bill makes any change to that. We have already included in law our commitment not to
“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU.”
That is set out in section 10(2)(b) of the European Union (Withdrawal) Act, which I was pleased to take through the House. For those reasons, the hon. Gentleman’s amendments are unnecessary and I urge him not to press them.
On amendments 43 and 47, I can offer hon. Members an assurance that the recognition and protection of rights are fundamental values of the UK. Our human rights framework offers comprehensive, well-established and effective protections within a clear constitutional and legal system. The Bill is compatible with the European convention on human rights, and the Minister who presented the Bill has given a certificate of compatibility, pursuant to section 19(1)(a) of the Human Rights Act 1998, in the usual way. We remain committed to the ECHR, as we have made clear time and again.
Further on amendment 47, the Government do not envisage any circumstances in which the powers set out in clauses 42 and 43 could be used to amend the Northern Ireland Acts of 1998 and 2006. That renders the amendment unnecessary. For this reason, the Government are not willing to accept the amendment. I hope that hon. Members will be reassured by our commitment on this very serious matter and will not press them.
New clause 6 would require the Government to
“use their best endeavours to seek through the Joint Committee…the disapplication of export declarations and other exit procedures”.
I appreciate the thought and sentiment behind the new clause, but I am happy to say that there is no need for it because, as I have already set out, the Government are committed to implementing the withdrawal agreement and the Northern Ireland protocol. We are continuing to work with the EU in the Joint Committee to resolve outstanding issues with the protocol, including export declarations. Although well intentioned, the new clause is unnecessary and I urge hon. Members to reject it.
I will now turn to the other amendments on our safety net clauses pertaining to subsidy control. Now that we have left the EU, we have the opportunity to design our own subsidy control regime in a way that works for the UK economy. My right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy set out the Government’s plans in this regard in a written statement to the House on 9 September. Clauses 43 and 44 seek to mitigate the risks that stem from the European Commission imposing a broad interpretation of article 10. Ministers will still have respect for the rule of law and human rights when making regulations using these provisions, which is why amendment 56 is unnecessary. I remind the Committee that the purpose of the provisions in clause 43 is to strengthen our legal safety net and ensure that it is the Government’s interpretation of article 10 that UK public authorities must follow. That is why we must reject amendment 58.
Amendment 60 would amend clause 44 by limiting the scope of the Secretary of State’s interpretation of article 10 when notifying possible state aid to the European Commission. Given the complex and novel nature of the application of EU state aid law through the Northern Ireland protocol, it is the Secretary of State who is best placed to interpret and then make any possible state aid notification to the European Commission. The amendment would require the Secretary of State to ignore the safety net that the Government have proposed when making such a notification.
I will deal briefly with amendments 31 and 32. I recognise the spirit of the amendments, but I have to say that they are simply not necessary. An assessment of the legal implications of the clauses has already been provided in the Government’s statements of 10 and 17 September. Nor is there any need to make regulations defining “incompatible” or “inconsistent”, because these are self-explanatory terms. There can be no serious doubt what they mean and no further definition is required. The true intention of the amendments may be to seek to provide another point for parliamentary debate. If that is the case, I trust that the hon. Members who have tabled them will support Government amendment 66. On that basis, I urge them not to press the amendments.
Joanna Cherry
I respectfully remind the Minister that the SNP has 48 Members in the House, not just one MP. I am grateful to him for giving way, because he has dealt with amendment 43, which I tabled, but not with amendment 44. Does he understand that insofar as clause 45 seeks to oust the inherent supervisory jurisdiction of the Court of Session, it not only interferes in devolved matters but it is in breach of article 19 of the treaty of Union between Scotland and England? I know that he does not have a Scottish Law Officer to advise him, but can he take that on board and address it now?
Mr Walker
I am happy to look into the specific issue that hon. and learned Lady raises, but if she looks at the text in Hansard she will see that I addressed the point that she made about amendment 44. I mentioned a Government amendment that had been introduced on separate issues, but I am certainly happy to take that point away for consideration.
In conclusion, the clauses are a necessary protection to deliver our promises on unfettered access and to deliver what the protocol acknowledges on Northern Ireland’s place in the internal market and customs territory of the United Kingdom, and to respect the principle of parliamentary sovereignty.
Paul Blomfield (Sheffield Central) (Lab)
I rise to speak to amendments 52 to 60, which I tabled with my hon. and right hon. Friends. Together, these amendments seek to provide a solution to the mess that the Government have got themselves into by removing the provisions in the Bill that put our country in conflict with international law. We do so, because we want to maintain our reputation as a country that respects the rule of law; because we want to see a successful internal market for the whole UK when we leave the transitional arrangements on 31 December; and because we want the Prime Minister to deliver the “oven-ready” deal with the EU that he promised the British people last December—a deal that pledged tariff and barrier-free trade for services as well as goods, along with safeguarding workers’ rights, consumer and environmental protection, and which offered a broad, comprehensive and balanced security partnership underpinned by continued adherence and giving effect to the European convention on human rights.
The Bill makes that less likely. Our talks with the European Union have been damaged, our reputation in the world appears trashed, and it is a mess that was completely unnecessary and is not resolved by the amendment tabled by the Government. This so-called compromise may calm some Government Members, but it does not resolve the issue: the breach of international law that has led to the resignations of the head of the Government legal service, Jonathan Jones, and of the Advocate General, Lord Keen, who said in his letter to the Prime Minister that he could not reconcile his obligations as a Law Officer with the Bill, as he could find no
“respectable argument for the provisions at clauses 42 to 45”.
In an interview on Radio 4 last week, the Lord Chancellor was uneasy in his defence of the Bill, as he might well be, having sworn an oath when taking office to
“respect the rule of law”.
The situation could not be more serious, and we accept that the amendment tabled by the hon. Member for Bromley and Chislehurst (Sir Robert Neill), which has been seized on by the Government, was introduced with good intention, arising from real, genuine concern among many Government Members, but it does not solve the problem.
In providing for a vote subsequently, the Government have offered a sticking plaster to salve consciences, but we would still be acting in contravention of international law—not when we enact the Bill’s provisions, but when it goes on to the statute book. The Government amendment does not change that fact. Let us look at the withdrawal agreement—as the right hon. Member for Maidenhead (Mrs May) did in her intervention—which was negotiated by the Prime Minister, signed by him and commended to the electorate as the reason to vote for the Conservative party in December’s election. Now, apparently, it is so flawed that we have been asked to break the law.
I saw the argument advanced by the Attorney General that it is okay to breach international law if the decision is taken constitutionally. That clearly flies in the face of the Vienna convention, to which we are a signatory. Article 27 makes that clear:
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
Antony Higginbotham
I will not, because I am short on time. The clauses we are talking about today do exactly what we said in the manifesto. Clause 40 deals with Northern Ireland’s place in the UK internal market. Clause 41 deals with unfettered access. Those should be uncontroversial clauses and they should be uncontroversial because they are explicitly referenced in the protocol itself, which states that
“nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market”.
As we have heard today, the protocol goes on to set out in high-level terms how we avoid a hard border on the island of Ireland, something that I am as committed to today as I was the day I voted for Brexit. We heard eloquently from my hon. Friend the Member for South Ribble (Katherine Fletcher) why that is so important. The protocol also sets out that it is for the Joint Committee to reach agreement on some of the specifics. It delegates decision making to that committee to finesse the detail and act in a way that is consistent with the protocol. The protocol requires both sides to negotiate in good faith, protect the Good Friday agreement and reach a free trade deal, because ultimately that free trade deal is what will prevent a hard border. That is what we are striving for, and that is what the clauses help to do.
However, given the short time before the end of the transition and that no free trade agreement has yet been agreed, we have to give thought to what happens if the EU takes an approach that is not in good faith. What if it takes a maximalist approach to what goods are considered high risk or a maximalist approach to what would constitute state aid that impacts the European Union? The outcome of that decision would not only be a major impediment to Great Britain and Northern Irish trade, but would threaten our own integrity and the Good Friday agreement. Are some seriously suggesting that in that scenario there should not be a means for the UK to respond? Are they suggesting we should look at such a situation, shrug our shoulders and say international law means we must surrender parts of our country?
I heard the concerns from Members on both sides of the Committee about international law, but let us be clear on what we are not doing. I do not think that the language has been helpful. We have heard references to rogue states, to the Novichok poisoning on UK streets and to Hong Kong citizens, but we are not breaking international criminal law. We are not breaking an international treaty on global security. We are not breaking a free trade agreement. We are saying that, having signed up to an agreement to fulfil a democratic mandate to the people of this country, which one side appears to be using to undermine our constitutional integrity, we will stand resolutely as one country in pushing back.
We have values as a country, and yes, those include standing up for an international rules-based system, the rule of law and democratic sovereignty, but when conflict arises, which it can do from time to time, Parliament remains sovereign, and this Parliament will act in the interests of our Union. That position was reaffirmed in our own EU withdrawal Act, which recognised the sovereignty of Parliament. If this Parliament is sovereign, we must act for the constitutional integrity of our country, and for that reason, I will be supporting this Bill.
Mr Robin Walker
We have heard passionate speeches from both sides of the debate and from a range of colleagues across the political spectrum in Northern Ireland and across the UK. I will not be able to take interventions because of the short time available.
In response to the specific question from the hon. Member for Sheffield Central (Paul Blomfield), although I will not go into the detail of Joint Committee discussions, I can confirm that we certainly have raised the issue of state aid. We, of course, want to see that resolved through the Joint Committee, as we have repeatedly set out.
I recognise the significant concerns raised by my right hon. Friend the Member for Staffordshire Moorlands (Karen Bradley) and others across the Committee, which is why we have agreed that the break-glass provision should be included in the Bill, requiring the House of Commons to give its approval before these measures are commenced. My hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) asked an important question, and we will, of course, ensure that the House has the opportunity to debate matters in full before voting on commencement of these provisions.
As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) has made clear, if we reach that point, the Government will have to make a persuasive case to the House. We published a statement last week saying that we will ask Parliament to support the use of provisions in the Bill only in the case of the EU being engaged in a material breach of its duties of good faith and thereby undermining the fundamental purpose of the Northern Ireland protocol.
As I set out earlier, let me reassure Members that the Government are absolutely committed to implementing the withdrawal agreement and the Northern Ireland protocol, meeting our obligations to secure the peace process. We continue to work with the EU in the Joint Committee to resolve outstanding issues with the Northern Ireland protocol, as the Prime Minister has set out. However, as a responsible Government, we cannot allow the economic integrity of the UK’s internal market to be inadvertently compromised by unintended consequences of the protocol. The protocol was designed as a way of implementing the needs of our exit from the EU in a way that worked for Northern Ireland, and in particular for maintaining the Belfast/Good Friday agreement, the gains of the peace process and the delicate balance that that reflects between both communities’ interests. It explicitly depends on the consent of the people of Northern Ireland for its continued existence.
We are taking limited and reasonable steps to create a legal safety net by taking powers in reserve, whereby Ministers can guarantee the integrity of our United Kingdom and ensure that the Government are always able to deliver on their commitments to the people of Northern Ireland. As my hon. Friend the Member for South Ribble (Katherine Fletcher) said in an excellent speech, one of those commitments is to the sustained economic growth of Northern Ireland.
These limited steps deliver on the commitments that the Government made in their general election manifesto—the manifesto on which every Government Member was returned. They deliver on the commitments made in the Command Paper published in May, and they deliver on the promises made by this Government and our predecessor to provide unfettered access between Northern Ireland and Great Britain. I therefore urge Members to vote against all amendments, other than those brought forward by the Government, to ensure the peace and prosperity of Northern Ireland and our whole United Kingdom.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 40
Northern Ireland's place in the UK internal market and customs territory
Amendment proposed: 41, page 31, line 16, at end insert—
‘(1A) When exercising any functions covered by this Part, any appropriate authority has a paramount duty—
(a) to act without prejudice to all international and domestic law, including the Withdrawal Agreement;
(b) to address the unique circumstances on the island of Ireland;
(c) to maintain the necessary conditions for continued North-South cooperation;
(d) to avoid a hard border on the island of Ireland;
(e) to protect the Belfast/Good Friday Agreement in all its dimensions.” —(Stephen Farry.)
This amendment is intended to provide a safeguard so that any actions with respect to Part 5 of the Bill must be consistent with relevant existing international and domestic law commitments, including the terms of the Withdrawal Agreement and its Ireland/Northern Ireland Protocol.