Northern Ireland Protocol Bill

Debate between Michael Ellis and Stephen Doughty

Committee stage
Wednesday 20th July 2022 Commons Chamber

[Stephen Doughty]

Indeed. The point I have made is that the powers the Government are taking remove responsibilities from the Northern Ireland Assembly. We want all communities to have a say on matters that affect them going forward. I am sure we will come on to a number of those amendments in due course.

In the same vein, we would support amendment 12, which relates to clause 18, tabled in the name of my right hon. Friend the Member for Leeds Central (Hilary Benn), were he to press it to a Division. As the Hansard Society points out, clause 18 would give Ministers the power to “engage in conduct” relevant to the Northern Ireland protocol if they consider it—again this word—“appropriate” in connection with one or more of the purposes of the Bill. However, the Bill provides no elaboration on what type of activities that “conduct” could involve. Nor have the Government given a justification for why the additional power is needed. Indeed, the former head of the Government Legal Service, Sir Jonathan Jones QC, someone who has said a lot about the legality of the Bill, described this as a

“do whatever you like power”.

Given that the Government can provide no assurances on what types of “conduct” the power will be restricted to and that we have no justification for why it is even needed, this is not something we can support. That is why we support amendment 12, tabled by my right hon. Friend. The Government are in no position to expand their powers to such a degree, particularly in areas so sensitive. Not only are they a gross overreach of power, but they are also disrespectful to the constitutional role of this House.

I turn to some of the amendments that have been tabled. Labour has been clear, since the Bill was first introduced, that the way to solve the problems before us is to negotiate, and to do so in good faith. We recognise that the operation of the protocol has created genuine tensions that need to be addressed, but that is best done by all sides listening to each other and acting in good faith, and with the Belfast/Good Friday agreement at the heart of those discussions. I contend that the Bill simply does not do that. It is not an act of good faith for Westminster to unilaterally impose a solution, not least across Northern Ireland, and nor, tragically, will the solution proposed achieve its ultimate objectives. Only an agreement which delivers for the people and businesses of Northern Ireland, and respects the wishes of those on all sides and all communities, will provide a long-term and sustainable solution to this problem. That is why we support amendment 49, which references the fourth point in the protocol and the importance of protecting the Belfast/Good Friday agreement in all its parts, if it were to be pressed to a Division. Unilateralism is not the way forward on matters of such sensitivity.

I do not want to detain the Committee further at this stage. We have many amendments to get through today. To conclude, Labour’s amendments will prevent handing the Government overreaching powers that they are simply not fit to hold. Our amendments will protect the much-valued scrutinising and functioning of this House, and give a voice in this hugely delicate and important process to the people of Northern Ireland.

[The Minister for the Cabinet Office and Paymaster General (Michael Ellis)]

Allow me, Dame Eleanor, for I think the penultimate time, to thank hon. Members who have spoken in Committee. I would like to turn to the clauses under discussion in this debate. With the leave of the Committee, I will deal with some of the amendments very briefly.

Clause 13 outlines the exclusions that seek to redress the feeling that there is a democratic deficit created by the arrangements for the implementation and enforcement of the protocol. The present role of the Court of Justice of the European Union clearly causes Unionists to feel less connected to, and part of, the United Kingdom. That was reflected in the September 2021 joint statement by all Unionist parties on the protocol. Clause 13 provides that any provision of the protocol that confers jurisdiction on the CJEU over arrangements in Northern Ireland is excluded provision. That means that CJEU decisions, including infractions, will no longer have effect in domestic law across the entire protocol.

I confirm to the Committee that the Bill does not disapply the withdrawal agreement’s arbitration process, which would be convened at the international level in the event of a dispute. It simply affirms that the arbitration provisions in the withdrawal agreement do not have effect in our domestic law, and that is normal for international treaties. It then helps to restore the UK Government’s sole oversight of arrangements on the ground in Northern Ireland, providing that the provisions relating to the powers and presence of EU representatives are excluded. Finally, via subsections (4) and (5), clause 13 allows for the establishment of new arrangements for co-operation with EU authorities to monitor the trade boundary regime, and enables us to implement robust data sharing on the operation of the trusted trader scheme and on all goods moving between Great Britain and Northern Ireland. That will support assurance processes to uphold our commitment to protect both the UK internal market and the EU’s single market.

Clause 14 supports the coherent functioning of the Bill by fully insulating any excluded provision from being brought back into our domestic law as a result of obligations arising from other provisions of the protocol and withdrawal agreement. If needs be, regulations under subsection (4) can be used to make appropriate provision in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The clause provides important clarity on the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement related to it.

Clause 18 provides a power for a Minister to engage in non-legislative conduct where they consider it appropriate in connection with one or more of the purposes in the Bill. The clause also clarifies the relationship between powers to make secondary legislation under the Bill and those arising by virtue of the royal prerogative. The clause will ensure that actions not requiring legislation, such as issuing guidance to industry or providing direction to officials, can be taken in a timely manner by a Minister of the Crown. It is not, as I think has been misconstrued in some quarters, an extraordinary power. It simply makes clear, as would normally be taken for granted, that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation.

Clause 20 allows for the proper functioning of domestic court proceedings following the removal of the domestic effect of CJEU jurisdiction. That means that domestic courts would no longer be bound by CJEU principles or decisions when considering matters relating to the protocol. The clause provides a power to make related new provision. Regulations made under the power could, for example, provide for a procedure to refer questions of interpretation of EU law to the CJEU if a domestic court considered it necessary to conclude its proceedings.

--- Later in debate ---

[Stephen Doughty]

This has been a very wide-ranging and thoughtful debate, albeit with passion at various points. The question of a democratic deficit is one of the key issues that we have discussed. I recognise the concerns of Unionist colleagues in the Chamber, but I find it odd that the Government are pursuing a Bill with parts that remove powers from this place and the Northern Ireland Assembly and give them to Ministers here. It strikes me that that is the real democratic deficit that we are dealing with.

I hope that the other place will look at these matters in great detail in the weeks to come. I indicate our support for amendments 12 and 49, if those are put to a separate decision, but I will withdraw amendment 38.

[Michael Ellis]

I thank hon. Members, who have all spoken passionately. I will try very briefly to address some of their points.

The hon. Member for North Down (Stephen Farry) asked about the impact of CJEU provision on Northern Ireland access to the EU single market. When he raised the point, I reiterated the importance of cross-community consent; I should also reassure him and the Committee that we want and intend to retain elements of the protocol that are working and preserve north-south trade and co-operation. As the Prime Minister has said, we want to fix it, not nix it. The Bill just makes targeted changes to address key concerns and restore balance.

The hon. Member for Strangford (Jim Shannon) raised some technical questions about pharmaceuticals; I will write to him about them.

The right hon. Member for Leeds Central (Hilary Benn) referred to clause 18, which I assure him is genuinely less exciting than some might think. Normally, as he knows, the lawfulness of Ministers’ non-legislative actions can be taken for granted or implied. The Bill is slightly unusual in that it clarifies how new domestic obligations replace prior domestic obligations that stem from international obligations. Those international obligations are currently implemented automatically by section 7A of the European Union (Withdrawal) Act 2018. That conduit pipe currently constrains—and could cause confusion in future as to —how Ministers can act in support of the Bill. Clause 18 will remove that potential confusion.

The hon. Member for Belfast South (Claire Hanna) juxtaposed Northern Ireland with Cyprus. I do not need to say to anyone on the Committee, particularly anyone from anywhere on the island of Ireland, that the history and geography of Northern Ireland is vastly different from that of Cyprus, so it is clear that different issues might arise from the remit of the CJEU. On that note, I recommend that the clauses stand part of the Bill.

[Stephen Doughty]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 13 and 14 ordered to stand part of the Bill.

Amendment proposed: 12, in clause 18, page 10, line 9, leave out subsection (1).—(Hilary Benn.)

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

Question put, That the amendment be made.