Northern Ireland Protocol Bill

Hilary Benn Excerpts

Committee stage
Wednesday 20th July 2022 Commons Chamber

The stakes are high. It is not just the integrity and stability of our UK internal market that is at stake; it is the integrity and stability of our Union of four nations, the most successful political union in history. We jeopardise it at our peril and we must strive to ensure that Northern Ireland can continue to enjoy all the benefits that our Union offers.

[Hilary Benn (Leeds Central) (Lab)]

Brexit undoubtably casts a heavy shadow over this debate. The point raised by the right hon. Members for Chipping Barnet (Theresa Villiers) and for Lagan Valley (Sir Jeffrey M. Donaldson) on the democratic deficit is fairly made, although almost all the laws under which Northern Ireland is currently operating apply in the United Kingdom because of retained EU law. We must not get this entirely out of perspective because the Government chose, at the moment of withdrawal, to take EU law, move it across and stick it into UK legislation.

[Sammy Wilson]

Although the right hon. Gentleman makes a valid point about EU law being retained for the rest of the United Kingdom, the vital difference is that the 82 pages of EU law contained in the protocol can be changed. Those changes apply to Northern Ireland, which is where the democratic deficit comes in.

[Hilary Benn]

The right hon. Gentleman makes a fair point, and I understand it entirely. I am talking about the situation as it is today. We should, therefore, be calm and reasonable in describing it.

Let us not forget that Northern Ireland is in a unique and favourable position compared with my constituents, precisely because it has access to both the market of the United Kingdom and the market of the European Union, which is why the polling indicates that businesses in Northern Ireland are very much in favour of having this privileged access, which other parts of the United Kingdom would greatly like.

The right hon. Member for Chipping Barnet correctly made a point about the grace period. I do not understand why the Government did not just continue negotiating within the grace period. [Interruption.] The Minister for the Cabinet Office raises his eyebrows, but we have now been in the grace period for 18 months. I believe there is a problem with the checks that needs to be sorted out, as I have said on the record many times. In my conversations with European colleagues, I have asked them to give me one example of how the integrity, safety and security of the single market has been compromised during the grace period. I have yet to receive an answer that a problem has actually arisen. The longer that goes on—perhaps that would have been the better approach for the Government—the more difficult it becomes for the EU to argue, “There is a fundamental difficulty here, which is why we need the whole panoply”. In the end, we are going to have to identify where the real risks are, and it is a relatively limited number of products. For the rest, particularly those goods that come to supermarkets and businesses in Northern Ireland that are not going anywhere else, a completely different solution could be required, although the Government are going to have a job on their hands to differentiate between the two.

I wish to speak in support of my amendment 12, which I hope might be voted on later, my amendment 13 and other amendments. I said last week that the Bill as a whole was egregious, but clause 18(1), to which amendment 12 refers, is particularly so, because it states:

“A Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol…if the Minister of the Crown considers it appropriate”.

Basically, that is asking the House to legislate to give Ministers a power to do whatever they feel like, provided, in their opinion, that they think it is appropriate. We should listen to what Sir Jonathan Jones, the former Treasury Solicitor has had to say. As my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty), who is on our Front Bench, mentioned, Sir Jonathan described this power as “extraordinary” and said it is a “do whatever you like” power, and no wonder. He also said in the article he wrote that the United Kingdom Internal Market Bill, which led to his resignation, was bad enough, but this Bill is of a “wholly different order”. The Hansard Society has criticised the clause as not being subject to any parliamentary scrutiny whatsoever, a criticism also made by the House of Lords Delegated Powers and Regulatory Reform Committee, which said:

“There is no definition of ‘conduct’ in the Bill itself. And there is nothing on the face of clause 18 that would prevent it from creating legally binding rules of general application.”

The Committee has previously criticised what it calls “disguised legislation,” by which it means

“instruments that are legislative in effect but often not subject to parliamentary oversight. Examples include guidance, determinations, arrangements, codes of practice and public notices. Clause 18 appears to allow all these things to be done, without any parliamentary procedure and in a way that is binding on the general public.”

So the question the Committee reasonably ask of the Minister is: what is this power and what do Ministers want it for? If I heard the Minister correctly, he said that the clause was there merely to ensure that Ministers acted lawfully. What is this “conduct”? I ask because “engage in conduct” is, as the very helpful House of Commons Library note says,

“an unusual form of words for a statutory power.”

If we turn to the Bill’s explanatory notes for some enlightenment, we see that they state that clause 18(1) authorises “sub-legislative activity”. I have been in the House for a few years and I have never come across the concept of “sub-legislative activity”, whatever that is. The only example given in the explanatory notes is guidance. If the Government’s aim is to have a power to issue guidance on matters that they have not thought of in the rest of the Bill or might think of at some point in the future, why does the clause not say, “The Minister will have the power to issue guidance”? It does not say that.

The other example the Minister gave left me even more perplexed. He said that this was to enable Ministers to issue instructions to civil servants. I was a Minister for nine years and I am not aware that I had to refer to a bit of legislation to give instructions to civil servants. I find the explanation wholly incredible, so it begs the question, and ought to beg the question for the Committee, whether one supports the principle of the Bill or not: what are the Government actually seeking to do? The Hansard Society, in its excellent note, makes it clear that that is not a narrow, obscure point. It is about ensuring that relevant legal provisions are drafted and treated consistently with other legislation. That is why the Hansard Society says:

“It also ensures that law-making does not circumvent the publication requirements that accompany, and the parliamentary scrutiny that is afforded to, primary and delegated legislation.”

In this case, the Government have given no explanation of why they believe that the powers are needed—apart from in relation to guidance and instructing civil servants, as we have just heard from the Minister—or why they believe that the powers are administrative rather than legislative. We need to hear from the Minister in his further contribution precisely what conduct is covered by cause 18(1). If he has a list of things in mind, will he please amend the Bill and put them in one by one so that we can see what they are? Secondly, will he give a categorical assurance that this provision will not permit legally binding obligations to be made as a result of that conduct? I raise that issue because the Government have not included clause 18(1) in the Bill’s delegated powers memorandum, which is quite a significant point.

The clause is also indicative of the Government’s wider ambitions for, and the problems they are having with, the Bill. What they really want to do—the Minister has been absolutely open about this, to his great credit—is give themselves the power to do whatever they want in relation to the protocol. They want to be able to turn things on, turn them off and even turn them back on again whenever they feel like it. The fundamental problem, which has become evident over the last two days in Committee, is that, in fairness, Ministers are not entirely clear how some of their proposals—for example, a red customs lane and a green customs lane, or the dual regulatory regime, which we discussed at some length yesterday—will work in practice.

To take the example of the dual regulatory regime, when pressed on whether firms would be required to choose whether to follow EU or UK rules, the Minister said yesterday:

“clause 7 makes it clear that businesses will have a choice which regulatory route to follow when supplying goods to the market in Northern Ireland.”

However, later he said that clause 11 would

“allow a Minister to prescribe a single regulatory route for specific sectors, including a UK-only route with no application of EU law”—[Official Report, 19 July 2022; Vol. 718, c. 877-79.]

In other words, businesses will be absolutely free to choose which system they want to use, unless and until the Government tell them which one they must use.

There is a confusion and a contradiction here. Why would Ministers want to take such a power if they are confident that they have already worked out how a dual regulatory system will work? I do not think they are confident, because they do not know the answer. That is why so many of these Henry VIII powers are dotted throughout the Bill to give the Government the cover they require. For me that goes to the heart of why clause 18(1) is so objectionable and why it has been more widely criticised—apart from the Bill itself—than any other clause: the Government are trying to give themselves a sweeping power and a sweeping-up power. That is why this provision should be removed.

Let me turn briefly to my amendment 13. To be frank, I tabled it as a probing amendment because I was trying to understand the Government’s intention in allowing courts or tribunals in the UK to refer matters to the European Court. There is a bit of a contradiction between clause 20(2), which would prevent any UK court from referring a matter to the European Court, and clause 20(4), which would allow the Government to lay down in regulations a procedure under which courts could refer matters of interpretation of EU law to the European Court. To put it simply, if the Government are planning regulations to allow referrals—if they are not planning that, why does subsection (4) exist—why take a blanket power two subsections earlier to prevent any referrals whatever. The thinking does not seem clear.

Finally, given what I have said about the inappropriate use of the word “appropriate” in the Bill, I support the Opposition amendments, including new clauses 11 and 12, which would change the word “appropriate” to “necessary”. It seems to me that that would provide a better and a higher test for the exercise of ministerial discretion rather than the wide latitude allowed for in the Bill, which has rightly led to so much criticism from so many quarters.

--- Later in debate ---

[Stephen Farry]

It is a pleasure to speak in the debate. I want to make a few points about the European Court of Justice and my amendment 46. It is important to recognise that the ECJ has not been a big issue in Northern Ireland to date. No business has ever expressed any concern to me about its jurisdiction. Indeed, it was a very minor issue in political debate in Northern Ireland until Lord Frost took it upon himself to escalate the issue in a speech that he made last October in Lisbon, I think. It was on the eve of the European Commission tabling proposals for breaking the deadlock on this issue; that shows how well the Government have handled some of the so-called negotiations. The European Court of Justice seems to be an obsession for hard-line Brexiteers in this Chamber and elsewhere, and for those who advocate what could be described as a purist and old-fashioned approach to sovereignty that denies entirely the realities of the modern, interdependent world.

It is important to focus on the distinction between dispute resolution mechanisms in a free trade agreement, and the situation regarding the protocol. Many people suggest that we should simply have an arbitration mechanism for the protocol, and deliberately conflate the two types of agreement. It is entirely appropriate to have an arbitration mechanism for the trade and co-operation agreement, which is a free trade agreement between the United Kingdom and the European Union. It is about two equals coming to the table and working out exactly how things will be taken forward. The position on Northern Ireland and the protocol is qualitatively different; we are talking about a region that continues to have direct access to the single market for goods, and is required to remain aligned with a body of European law, as is set out in annex 2 of the protocol. We will in a minute discuss the pros and cons of that, and the justification for it, but that is the situation that pertains, and why there is a different arbitration mechanism for a free trade agreement.

If the ultimate jurisdiction of the European Court is removed, that will jeopardise or destroy Northern Ireland’s ability to access the single market for goods. It is important that Members are fully aware of the implications of going down this particular road, because the two go hand in hand. Northern Ireland needs to remain in line with that law, and the European Court is part and parcel of how the situation works. Of course, if that were to happen, there would be massive implications for all businesses that operate on a north-south basis or that trade directly into the European Union. It is important that we do all we can to preserve that jurisdiction, while at the same time trying to fix the issues that pertain across the Irish sea. Through the Bill, a unilateral approach will be imposed on the European Union that probably will not address the issues across the Irish sea and at the same time will undermine Northern Ireland’s current dual-access opportunities.

I will go further and say this: we do not simply have to tolerate and put up with the situation. I maintain that being within the jurisdiction of the European Court of Justice is actively in Northern Ireland’s interests, because there may well be situations that come to light over the years where—due to the complications around the protocol, and the distinctions between Northern Ireland and the rest of the United Kingdom—some businesses and places in the European Union do not accept goods from Northern Ireland, because they are confused about the overarching situation. In such situations, it is crucial that we have the European Court of Justice to enforce the rules and protect the rights of Northern Ireland businesses. If we are to change the jurisdiction, there is a real danger and risk that we throw away the opportunity and advantage that we have.

Last night, I had a conversation with a major export business in my constituency, whose representatives said that they were recently at a trade fair in Italy and people said to them, “Thank God you’re still part of the single market via the protocol, because we cannot do business readily with your counterparts in Great Britain, but because you’re part of the protocol we have that export opportunity.” Many hundreds of people are employed by that company. It is important to recognise that issue.

[Hilary Benn]

The hon. Gentleman is making an interesting and important speech. In clause 20(4), the Government propose to allow cases to be referred to the European Court; they say they want the European Court to have nothing to do with any of this but are then taking a power to allow referrals. Does he, like me, think that that is because businesses in Northern Ireland that choose to operate under the dual regulatory system under EU rules may themselves, in the circumstances he has just described, want to go to the Court to demonstrate that they are abiding by the rules, and therefore ensure that the Republic or any other EU country cannot say, “We are not taking your goods”? That is in the interests of business in Northern Ireland, is it not?

[Stephen Farry]

Absolutely. I am grateful to the right hon. Member for reinforcing that point; there is a kernel of rationale as to why the provision is in the self-interest of Northern Ireland businesses. If the Government even slightly recognise that—without, perhaps, wanting overly to acknowledge it—that is indeed welcome. I hope that the Minister will expand on that whenever he speaks.

I want to make some closing comments on the democratic deficit. Of course, the largest democratic deficit we currently face in Northern Ireland is the fact that we do not have an Assembly, which means that we cannot do any self-government, pass any laws or strike a devolved budget, and there is money building up through Barnett consequentials to address the cost of living that cannot be allocated to help struggling households. That is the big democratic deficit that the people of Northern Ireland are talking about at present, not the intricacies of European law.

--- Later in debate ---

[Hilary Benn]

There is a problem with the operation of the Northern Ireland protocol and it needs to be sorted out, but this Bill is not the way to do it. Indeed, it will end up making matters worse, because it has damaged trust—the very thing that is required to solve the problem. That is why I will not be voting for the Bill tonight.