Northern Ireland

Chris Heaton-Harris Excerpts

Wednesday 22nd March 2023 Commons Chamber

[The Secretary of State for Northern Ireland (Chris Heaton-Harris)]

I beg to move,

That the draft Windsor Framework (Democratic Scrutiny) Regulations 2023, which were laid before this House on 20 March, be approved.

It is my usual practice to take as many interventions as I possibly can during a debate; however, this debate is on a statutory instrument and is therefore time-limited, so although I will take interventions, I will not take as many as I normally would. I will, with the leave of the House, try to mop up all the questions raised at the end of the debate.

The Stormont brake is at the heart of the Westminster framework. It addresses the democratic deficit, restores the balance of the Belfast/Good Friday agreement, and ends the prospect of dynamic alignment. It restores practical sovereignty to the United Kingdom as a whole, and to the people of Northern Ireland in particular.

[Mr John Baron (Basildon and Billericay) (Con)]

As someone who served in the Province during the troubles and saw at first hand the pain and anger endured by all communities, may I ask whether my right hon. Friend agrees that the Windsor framework not only restores the balance of the Belfast agreement but offers the Province much greater prosperity by way of inward investment—and greater prosperity helps most situations?

[Chris Heaton-Harris]

I entirely agree with my hon. Friend. We are just coming up to the celebration of the 25th anniversary of the Belfast/Good Friday agreement, which has built peace and stability across Northern Ireland. I hope very much—as, I believe, does every single politician from Northern Ireland—that the next 25 years of the agreement, helped along by this Windsor framework, will bring to Northern Ireland an age of prosperity the like of which we have never seen before.

[Several hon. Members rose—]

[Chris Heaton-Harris]

I will give way first to the hon. Member for Strangford.

[Jim Shannon (Strangford) (DUP)]

It is not often that I am called before the others, but it is always a pleasure.

The Secretary of State and I will have some differences of opinion on this, but does he understand our frustration about the Windsor framework, or, as we Unionists call it, the Windsor knot? It is not a deal that enjoys or receives Unionist support, because the United Kingdom is giving the European Union sovereignty over the courts and power over Northern Ireland. Let me say respectfully to the Secretary of State, because I am a respectful person, that it has been shoved through the House by the Government, the Conservative and Unionist party—with some dismay, I now question the word “Conservative”, and where is the “Unionist”?—in a format that does not allow for scrutiny or due processes. Members on both sides of the House should take note of that and should vote against this statutory instrument, because it introduces a gravely important constitutional issue, and we are very concerned about it.

--- Later in debate ---

[Chris Heaton-Harris]

I thank the hon. Gentleman for his words, with which, however, I fundamentally disagree. I am a Unionist, and proud to be a Unionist. I believe that each of the four nations of our wonderful country makes it stronger, and I also believe that this is a massive step forward in terms of progress for not only Northern Ireland but the Union as a whole.

I disagree entirely with what the hon. Gentleman has said because the framework actually adds to the democratic scrutiny that is available. As one of Michel Barnier’s former advisers put it, the mechanism

“does amount to a clear veto possibility for the UK government, directive-by-directive, at the behest of a minority in the Northern Ireland Assembly.”

I think that people who know what they are talking about understand that this is a very, very good deal.

[Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)]

The right hon. Gentleman talks of prosperity. Seed potato growers in my constituency tell me that the framework is extremely welcome, because it means they can have access to the Northern Ireland market and in turn, via this mechanism, to the Republic of Ireland market. That is about the prosperity of my constituency, but perhaps this may lead to access to the Spanish and French markets, which could be useful in the future. I therefore believe that we should support the framework.

[Chris Heaton-Harris]

I thank the hon. Gentleman for his very, very pro-Unionist comments. He is entirely right. Through the protocol, seed potatoes and a host of other products were no longer available in Northern Ireland. The Windsor framework solves those issues and opens up market opportunities.

[Colum Eastwood (Foyle) (SDLP)]

I am grateful to the Secretary of State for giving way to me. I thought I was going to have to do a whole lot of squats just to get in.

One of the criteria for using the Stormont brake, and for signing the Petition of Concern, is that Members of the Legislative Assembly

“must be individually and collectively seeking in good faith to fully operate the institutions, including through the nomination of Ministers and support for the normal operation of the Assembly.”

Does this mean that Jim Allister will be precluded from signing the petition?

[Chris Heaton-Harris]

If the Assembly is sitting and he is sitting in it, which he would be as a fully elected member of his political party, I am absolutely sure that he could do that.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

I commend the Prime Minister and my right hon. Friend for the work they have done. Does it not show that when we build bridges, when we show pragmatism, when we work with our continental colleagues, we can provide results? Does my right hon. Friend agree that, along with AUKUS, the Paris summit and indeed the Budget, this is a return to the statecraft that we want to see in No. 10?

[Chris Heaton-Harris]

It is, without doubt, statecraft emanating from No. 10, and I pay tribute to the Prime Minister for everything that he does in that respect.

[Several hon. Members rose—]

[Chris Heaton-Harris]

I will continue for a bit, if I may. I will give way in a moment.

We all believe, as democrats here, that in a democracy people should have a say over any change in the laws under which they live, but under the old protocol, that was not the case. Changes to laws were automatically imposed on Northern Ireland whether it wanted them or not, and, like many other Members, I as Secretary of State for Northern Ireland considered that to be an unacceptable state of affairs. The Stormont brake not only ends that situation, but ensures that changes made to rules and regulations have the consent of both communities, thus asserting a fundamental principle of the Belfast/Good Friday Agreement.

[Richard Graham (Gloucester) (Con)]

I am very grateful to my right hon. Friend, who has made all this progress hugely possible through his hard work. Does he agree that wherever we are starting from, it is clear to everyone who compares the Northern Ireland protocol with the Windsor framework that good progress has been made, that the framework is an improvement, and that it is strongly welcomed by most of the communities in Northern Ireland, and for that reason we should support it today?

[Chris Heaton-Harris]

Yes, I do believe that, and I thank my hon. Friend for making the point.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

The Secretary of State is making a powerful case about democratic scrutiny. In that spirit, will he confirm that in order to support the Windsor agreement, he will use his powers as Secretary of State to retain all the existing EU law that would otherwise be deleted by the Retained EU Law (Revocation and Reform) Bill by the end of this year? The European Union has written to us today warning us that if he does not do that, the agreement will be in doubt. This is not to do with the Stormont brake; it is the existing legislation that will be deleted by the sunset clause. The Secretary of State has the power to retain it. Is he going to do so, in order to support this legislation?

[Chris Heaton-Harris]

I am afraid I have not seen that letter; I know nothing of it. I believe that the Retained EU Law (Revocation and Reform) Bill will do a good job of work for the whole of the United Kingdom.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

I fear that today we will respectfully have to agree to disagree. My right hon. Friend has described the brake on multiple occasions, including in BBC interviews, as a veto. Given that, if Stormont pulls the brake, UK Ministers may still not exercise the brake in exceptional circumstances—so it is down to ministerial fiat—and given that, even if they do, the EU can object and it will be referred to independent arbitration, where the UK could lose, that is a route to arbitration, isn’t it? That is not a veto. Will he accept that?

[Chris Heaton-Harris]

One, it is a veto; two, it is a route to arbitration; and three, it removes any element of the European Court of Justice being relevant in this decision. So I think we have actually delivered on some of the things that my right hon. Friend and I have campaigned on over the years.

[Hywel Williams (Arfon) (PC)]

In respect of grounds for seeking to apply the brake, in response to my written question to the Foreign Office on exports to Northern Ireland through the port of Holyhead, the Under-Secretary of State for Foreign, Commonwealth and Development Affairs, the hon. Member for Aldershot (Leo Docherty) replied:

“The Green Lane is open to all UK businesses where they import or sell goods that are not ultimately destined for EU market. This includes goods travelling from Wales to Northern Ireland in transit through the Republic of Ireland, using the procedure”.

Can the Secretary of State confirm that that is indeed the case and elaborate, now or by letter, on how that procedure will work?

[Chris Heaton-Harris]

I thank the hon. Gentleman for his question, which I did not hear completely. The green lane will be open for goods travelling into Northern Ireland for consumption in Northern Ireland. There is a red lane for goods going into the Republic. If I misheard his question, I will write to him to clarify, if that is okay.

[John Redwood (Wokingham) (Con)]

Why do EU laws apply under this agreement to businesses in Northern Ireland that are not trading with the EU? How many EU laws apply, and why can we not see a list of them?

[Chris Heaton-Harris]

It is less than 3%. This preserves access for Northern Ireland businesses to the single market, and yesterday I listed a whole host of different areas in which these EU laws are disapplied in Northern Ireland.

[Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)]

The Secretary of State is of course right to say that any political entity within a wider economic structure should have a say or some way of expressing its view on the rules and regulations of that economic structure. With that in mind, will the British Government be bringing forward a Senedd and Holyrood brake when it comes to the UK internal market?

[Chris Heaton-Harris]

I thought we already had it, but I will come back to the hon. Gentleman if that is not the case.

[Julian Smith (Skipton and Ripon) (Con)]

Will my right hon. Friend reconfirm, first, that the Stormont brake stops and gives total control to the Assembly in Northern Ireland on any new EU law or regulation; and, secondly, that this deal has made huge strides on seed potatoes, VAT, state aid, customs and all the aspects of the protocol that we in this House have debated for so long?

[Chris Heaton-Harris]

I have to agree with my right hon. Friend.

[Several hon. Members rose—]

[Chris Heaton-Harris]

I think I should now continue with my speech, so that I can explain all this to the House.

The brake is triggered if 30 Members of the Legislative Assembly from two parties object to an amending rule or regulation. These MLAs can be from the same community designation, so they can, in theory and in practice, come from two Unionist parties, or indeed two nationalist parties. The exercise of the brake will require no other process and no vote in the Assembly. Once the brake has been pulled, the law will automatically be disapplied in Northern Ireland after two weeks. The EU can challenge the use of the brake only through international arbitration, after the law has been suspended, where the bar to overturn it will be exceptionally high.

The Stormont brake is one of the most significant changes that my right hon. Friend the Prime Minister has secured. It is a robust change that gives the United Kingdom a veto over dynamic alignment with EU rules but, just as importantly, the regulations we are debating today put the democratically elected representatives of the people of Northern Ireland in the driving seat when it comes to whether and when that veto will be used.

[Ian Paisley (North Antrim) (DUP)]

I thank the Secretary of State for giving way. Could he answer, very clearly, this one simple question? Is it not the case that every single lorry that departs from the port of Cairnryan to Northern Ireland will have to have customs declaration papers for every product on that vehicle? Is it right that a vehicle travelling from one part of the United Kingdom to another part of the United Kingdom continues to be treated in that way?

[Chris Heaton-Harris]

Those vehicles will be using the trusted trader service. There will be 21 fields of information, mostly auto-populated, which will mean no certificates will be needed from vets or other third parties—

[Ian Paisley]

That is wrong.

[Chris Heaton-Harris]

I would say to the hon. Gentleman that I think I am right.

[Mr David Jones (Clwyd West) (Con)]

When my right hon. Friend appeared before the European Scrutiny Committee yesterday, he promised to deliver the list of the 3% of EU laws he says will remain as a consequence of this process. Can he please tell us where that list is?

[Chris Heaton-Harris]

I gave the majority of that list in the course of those proceedings, and I said that I would write to my right hon. Friend, which I will do.

The old protocol had some measures that were aimed at giving it democratic legitimacy. The UK had a vote over any new laws that the EU wanted to add to the protocol, but that veto did not extend to amendments of laws that were already there, and crucially, there was no role for the Northern Ireland Assembly in deciding whether and when to use that veto. Of course, it contained the democratic consent mechanism, an important means of giving the Assembly the right to end the application of articles 5 to 10 of the old protocol. Those measures were important, and the Windsor framework maintains them, but they were not, in themselves, enough to address the democratic deficit.

[Michael Fabricant (Lichfield) (Con)]

I wonder if my right hon. Friend could clarify something for me. He has spoken about the green channel for goods movements from Great Britain into Northern Ireland. This is a genuine question. As I understand it, the Northern Ireland economy produces around £77 billion-worth of goods, of which £65 billion-worth go to the rest of the UK. Is it not the case, though, that everything manufactured in Northern Ireland would have to meet EU standards, even if it is going to the rest of the UK?

--- Later in debate ---

[Chris Heaton-Harris]

I have made it perfectly clear that we are maintaining 3% of EU law in Northern Ireland. This is the bare minimum to maintain Northern Ireland’s access to the single market, which just about every business I have spoken to in Northern Ireland, and that has made representations on this, is delighted to be maintaining. Indeed, I have been lobbied by individual Members from Northern Ireland to maintain access to both the UK market—the fifth largest economy in the world—and the EU market for goods.

[Dame Andrea Leadsom (South Northamptonshire) (Con)]

I fully support what my right hon. Friend has done here. The Prime Minister and the whole of the Northern Ireland team have done a great job. Does my right hon. Friend agree that the Windsor agreement enables a huge opportunity in Northern Ireland not just to be a precious part of our United Kingdom but to be the target of enormous amounts of foreign direct investment because it will have the advantage of being an integral part of the United Kingdom as well as having open access to EU markets?

[Chris Heaton-Harris]

We are maintaining that 3% of EU law. My right hon. Friend has helped to answer the question that my hon. Friend the Member for Lichfield (Michael Fabricant) posed.

There will be a binding statutory obligation in domestic law on Ministers to pull the brake when a valid notification is provided by 30 MLAs. These regulations will add a new democratic scrutiny schedule to the Northern Ireland Act 1998 to codify the brake in domestic law. The UK Government must—let me repeat that: they must—notify the EU when a valid notification of the brake has been provided by MLAs. This is an important new function for Members of the Assembly, and it is vital that they exercise this new function with the right information and expertise. After consulting with Northern Ireland parties, these regulations provide for a standing committee of the Assembly to properly scrutinise the relevant rules.

[Stephen Farry (North Down) (Alliance)]

I am treating today’s vote as a recognition of the wider package and voting for it, with the Government.

The democratic scrutiny committee is new to the Assembly and will require a lot of resources, as will the necessity of engaging with Brussels on the development of new law from first principles. Will the Secretary of State have a conversation with the Assembly about the potential for new resources, to make sure it can fully do this job?

[Chris Heaton-Harris]

I very much look forward to having that conversation with a fully functioning Assembly and Executive.

Some have described this as a consultative role for MLAs, but it is not. It is a robust power for MLAs to stop the application of amended EU rules, a power that neither the UK Government nor the European Union can override, provided that the conditions in the framework are met.

Some have claimed that the EU must have some means of blocking the brake. These regulations demonstrate that the process is entirely one for the United Kingdom. The process is firmly and unambiguously within strand 1 of the Belfast/Good Friday agreement. There is no role for any institution outside the United Kingdom, whether that be the EU or anyone else, in determining whether the brake is pulled. It will be for the UK alone—for its sovereign Government, alongside elected MLAs—to choose whether the brake is pulled.

Some also claim that the Government might simply ignore the brake. These regulations make it clear that the Government have no discretion. MLAs cannot be ignored. Valid notifications of the brake must be notified to the European Union. The Government’s actions will be subject to all the normal public law principles attached to decision making. For the avoidance of doubt, the regulations are clear that the prospect of any remedial measures by the EU cannot be a relevant factor in the Government’s determination.

It is not enough simply to allow MLAs to temporarily halt the application of a rule, but then allow the United Kingdom Government simply to override them when the joint committee decides whether the rule should be permanently disapplied. So these regulations go much further and provide a clear, robust directive role to determine whether the Government should use their veto or not. Unless there is cross-community support in the Assembly, Ministers will be legally prohibited from accepting an amended or new EU law that creates a regulatory border between Northern Ireland and the rest of the United Kingdom, except in exceptional circumstances.

Let me be clear: “exceptional circumstances” means just that. The threshold for that exception is unbelievably high, and a Minister invoking exceptional circumstances must be able to defend that decision robustly and in line with normal public law principles. What is more, a Minister must account to Parliament where they have concluded that exceptional circumstances apply, or where they consider that a measure would not create a regulatory border. This represents one of the strongest statutory constraints on the exercise of ministerial functions under a treaty ever codified in our domestic law.

[Colum Eastwood]

Would the Secretary of State just confirm to the House: if there is no Stormont, will there be a Stormont brake?

[Chris Heaton-Harris]

The brake cannot even start to be a thing until Stormont goes back and the Executive function.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

I thank the Secretary of State for setting out how the brake will operate. Will he join me in urging those considering these proposals before the House today to note that, for many years, people said it was impossible to have an application to stop the ratchet of EU law and to keep Northern Ireland in the Union?

[Chris Heaton-Harris]

I absolutely agree with my hon. Friend. I was also told that this would be an impossible ask. Throughout my time in the European Parliament and, indeed, as chairman of an illustrious body of MPs in this place, I never thought this would be achievable, yet the Government have managed to achieve it.

These regulations could scarcely make things clearer. The overwhelming presumption is that, unless the Assembly says yes, the Government must say no.

Finally, as with any international agreement, if the EU considers that the UK has improperly pulled the brake, it may choose to initiate a dispute, but we need to be clear that any dispute could only arise after the rules have been disapplied in Northern Ireland, and the resolution of that dispute would be for an arbitration panel. The European Court of Justice would have no role in resolving a dispute.

These regulations make the case for functioning devolved institutions in Northern Ireland even more compelling. The measures will become operable only when the institutions are restored. Denying the people of Northern Ireland will not only deny them the basic right to an effective, stable Government but will deny them full democratic input into the laws that apply to Northern Ireland, and that denial cannot be justified.

These regulations give domestic legal effect to this democratic safeguard and restore the UK’s sovereignty. We should consider carefully how we vote on this measure, without which Northern Ireland would continue to have full and automatic dynamic alignment with EU goods rules, with no say for the Northern Ireland Assembly and no veto on amending or replacing those measures. That is an intolerable situation, and I urge all hon. and right hon. Members to vote to end that full and automatic dynamic alignment. I therefore commend these regulations to the House.

[Mr Speaker]

I call the shadow Secretary of State.