European Union (Withdrawal Arrangements) Bill

Iain Duncan Smith Excerpts

2nd reading
Friday 6th December 2024 Commons Chamber

[Jim Allister]

The EU has behaved not as a friend to Northern Ireland. The EU has behaved as a sovereignty grabber in respect of Northern Ireland. That is where it caused, and continues to cause, the offence. If hon. Members think it is a good thing to back that up and endorse it, they obviously do not think very much of the territory of Northern Ireland.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

We are moving slightly into the ridiculous; may I bring us back to the main point? The purpose of the Bill that the hon. and learned Gentleman has drafted is simply to provide a solution for what is currently an unworkable position. I say to Government Members that it is not about 27 nations hating the UK; ultimately, it is about function. Sir Jonathan Faull, who was the director general of the EU internal market service directorate, ended up as director general of the taskforce for strategic issues related to the UK referendum, and he and his team came to a simple conclusion: the only way to make the situation workable was to have, in essence, what is in the Bill. He has put out a statement today to say exactly that. It is a practical issue, and those who knew and understood the difficulties at the time said there was a way to do this, but they were ignored.

[Jim Allister]

The right hon. Gentleman is absolutely right. Those of us who are looking for a solution are supporters of this Bill, because we cannot go on as we are. Those who think that it is okay to subjugate part of their own territory are opposed to this Bill. They are quite content with the colonisation of part of our territory. In constitutional terms, where we have ended up is that Northern Ireland is no longer a full part of the United Kingdom. Why? It is because we are not our own masters in 300 areas of law and that a foreign jurisdiction makes those laws. What does that create? It creates what is called, in constitutional terms, a condominium: Northern Ireland is ruled in part by UK laws and in part by foreign laws. [Interruption.] The hon. Member for Walthamstow (Ms Creasy) finds that hilarious—sorry, it is not hilarious to be subjected to that.

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[Jim Allister]

No, I am going to make some progress.

I strongly refute the fallacy that to depart from the Windsor framework is to breach international law. On the contrary, to perpetuate the infringement of our territorial integrity is to breach international law itself and, indeed, the Belfast agreement, which was built on consent, of which there has been none in respect of the current arrangements. The correct application of international law is to the effect that agreements that contradict the regulating principles, including respect for territorial integrity, are themselves the villains of the piece.

Having set out everything that is wrong, let me come to the solution. The Government have always told us that we cannot conduct sanitary and phytosanitary checks away from the border. It cannot be done, so we must have a border—in our case, in the Irish sea. But this week a statutory instrument was laid before this House that does exactly that. It does it for goods that come from the EU, via Northern Ireland, to GB. It says that the goods can be checked wherever they arrive, such as at factories or other premises; they do not have to be checked at the border. If we can do that for goods coming through Northern Ireland to GB, why can we not do it in reverse? Of course we could check goods without tampering with sovereignty; we could do so anywhere within the territory of the United Kingdom. It is not the impracticability of carrying out the necessary checks that is the problem; it is the fact that under the surrender of sovereignty it has been insisted that they are carried out in the Irish sea border.

That brings me to clauses 16 to 18 and the concept they would permit of mutual enforcement. I readily accept that the clauses draw heavily on the Northern Ireland Protocol Bill 2022—which found the approval of the previous Parliament—but they are none the worse for that. What they do is simple: they say that two respecting neighbours—that is what I hope the United Kingdom and the EU are—with the necessary trust between each other can operate a system where they mutually check the goods flowing through their territory to ensure they meet the standards of the recipient territory. That is a fundamental tenet of much of international trade. It is something that can be built upon in respect of this matter that the United Kingdom says, “Yes, we know the EU wants to protect, it tells us, its single market and, yes, we want to protect our single market, so we will undertake, by virtue of criminal sanction for those who do not, to check that goods flowing from our factories to your consumers, from our territory to your territory, meet the standards you set, and we expect you to do the same.” That can be done without any of the paraphernalia that we presently have.

[Sir Iain Duncan Smith]

On this particular point, it is worth pointing out that the EU already does it. In its agreements with New Zealand, for example, it trusts that specific veterinary practices to check lamb and other products arriving in the EU are done at the point of departure. By the time they get to Rotterdam, they are cleared straight through on the basis that they respect the checks done by those veterinary companies. They already did it for 40 years with UK companies where any subsequent checks had to be done. All this is already being done. The question is: why is it not being done for the arrangement we have at the moment?

[Jim Allister]

I absolutely agree. The fascinating point is the very concept was articulated from and originated within the EU itself.

During the early stages of the negotiations, Sir Jonathan Faull and academics Daniel Sarmiento and Joseph Weiler came up with that proposition. It is not my proposition. It is not a United Kingdom proposition. It was an EU proposition. They said the answer is mutual enforcement. Today we have a statement from those three gentlemen, which has been made public. It says, “On Friday of this week, the House of Commons will be debating a Bill which attempts to address some of the difficulties resulting from the Brexit divorce agreements between the EU and the UK, which might be of interest to readers. In 2019, we proposed a solution which would have obviated any need for these complicated and divisive legal manoeuvres. The UK and the EU could have respected each other’s positions and saved everyone a great deal of time and effort. The Financial Times characterised the proposal as a ‘win-win solution’. Regrettably, it was not followed.” I echo that: regrettably, it was not followed. Why was it not followed? Because the politics took over. Instead of looking for a workable, practical border solution, the politics of making the United Kingdom pay for leaving the EU took over. That is how we got into this morass of a pernicious imposition through the border.

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[Gavin Robinson (Belfast East) (DUP)]

I will respond in, hopefully, the same tone and say that it is a pleasure to follow the hon. Member for Bootle (Peter Dowd). I suspect there is a big prize for him waiting in the Government Whips Office after this debate. He welcomed every intervention going. I do not besmirch his character at all, but since he suggested that there is interest in the concerns being raised by the Unionist community, I reflect that with almost two hours left of a five-hour debate, I am the third speaker. Scores of Members from Northern Ireland on both sides of the Chamber will probably not get the opportunity to make their point and represent their constituents, because of a quest to make sure that the Bill is talked out. I say, respectfully, that the hon. Member did exactly what he was asked to do, but when considering these issues, I am not sure just how constructive that will prove to be.

The hon. Gentleman said in his remarks that we will be able to deal with issues as time goes by. I have watched “As Time Goes By” on repeat on UKTV Gold, and I have watched people in this Chamber say that we will deal with these issues “as time go by”. Here is an opportunity to engage in the concerns that the hon. and learned Member for North Antrim (Jim Allister) raised, having received support from across the Unionist spectrum in Northern Ireland to raise them. Yet, as time goes by, though it is said that we shall not be dismissed or demeaned in the position that we are putting forward, that is exactly what is happening.

I stand not only as leader of my party and my colleagues, but as a co-sponsor of the hon. Member’s Bill. I commend him on the position that he has outlined to the Chamber today and on his success in the private Member’s Bill ballot. He is not a gambler—anyone who listens to him will know that he will put forward his principled position without fear or favour—but he took a chance and he has this opportunity. I commend him on doing so in a collective and cohesive way that has allowed for greater co-operation not just from those in Northern Ireland, but from across the country. He should be commended for that.

The hon. Member and I embarked on this journey in the same position as we approached the 2016 vote. Although over the intervening years there have been a few crossed paths, a few cross words and the odd crossed sword, I suspect that it is good, fitting and encouraging for people at home that today we are speaking with one voice about these issues.

I say to the Minister and to the hon. Member for Bootle that one of the best ways to deal with the issues raised by the hon. and learned Member for North Antrim and me, and supported by colleagues in their own remarks, is to honour agreements that have been reached. When the hon. and learned Member said in his remarks that it seemed as if the people of Northern Ireland were being asked to “suck it up,” the Minister said from a sedentary position—I hope she will not fall out with me for sharing this—“No, we fight to maintain the Union.” [Interruption.] She is agreeing.

However, whenever agreement was reached earlier this year, the “Safeguarding the Union” paper outlined a number of stepping stones to a better place. The Minister and her colleagues present voted in favour of that agreement. They recognised the recurring issues in Northern Ireland, and the harm that those issues were causing the people of Northern Ireland and consumers, no matter the constitutional outlook. If constitutional principles are not shared, it harms ordinary people in Northern Ireland. They voted for solutions on an interim basis—a stepping-stone approach—to move these issues forward. Where are we on that today? What is the Government’s position on eradicating routine checks within the UK’s internal market system? They voted for it in this House back in February, and they did so because they recognised the constitutional implications that checks were having and the practical frustrations they were causing consumers in Northern Ireland.

[Sir Iain Duncan Smith]

The right hon. Gentleman is addressing an important part of the Bill’s purpose—from all the rhetorical issues right down to hard tacks. The previous Government went into the negotiations on the Windsor framework because it had dawned on, and been agreed by, the European Union that the protocol was not working. It recognised that nothing is fixed; these things are about experience, and then tempering that experience and changing. Labour Members keep saying, “You’ve reached an agreement and you will breach it,” but the real principle behind that is to recognise that there are still fundamental flaws, and that we could agree a better way to harmonise everybody in that respect.

[Gavin Robinson]

I agree with the right hon. Gentleman, and I am grateful to him for co-sponsoring the Bill and being present today. He is right: the people who say in this or other debates that we cannot change what is written in tablets of stone are of the very party that was, from 1998, part of securing the Good Friday agreement, which was worked on in a political way, with parties in Northern Ireland, including my own, and changed time and again through processes at Leeds castle, the St Andrews agreement and the Northern Ireland (St Andrews Agreement) Act 2006. The very arguments that they are deploying against change ignore the fact that they have a history of doing exactly the same thing—particularly on the Belfast agreement, which they often suggest is written in tablets of stone.

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[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I will try to be as brief as possible, to allow others to speak.

I wish to come to what the Bill is actually about, rather than what people say it is about, but first I want to dispel the idea that it would mean going backwards. The idea of mutual enforcement in fact originated, as others have said, in the EU itself at the time. It came from those who were tasked, as senior officials—British and others—to come forward with a solution, before the end of the Brexit debates and so on, with an alternative way to make the borders work and to take the heat out of what later became really quite powerful and ended up with a Government literally unable to move any motion at all and have it succeed.

I have personal experience of this issue because, when there was a break in the negotiations between the UK Government—who handled it pretty badly at the time, by the way—and the Commission, I managed somehow to get a team of people together to go and see Monsieur Barnier directly. We sat at a table with all his negotiators, and a few of ours who were there, and we talked through the principles. This was before mutual enforcement became a concept, but we talked about what already existed in the EU with others from outside the EU and inside the EU, and how they traded. We ended up reaching very much the same conclusion as originally reached by Sir Jonathan Faull and others: that mutual enforcement was the better deal. Monsieur Barnier agreed with us. At the end of that agreement—I can see him following me out as I put my coat on—he said, “The principle behind any chance of this being agreed is that we must have trust. Without trust, we cannot have an agreement.”

The sad part about it was that when I came back to the UK to speak to my Government, they did not want to take any interest in that as a departure. They had already got bogged down in other areas. Sadly, two weeks later, what actually happened was that the Government went back in and carried on with their complicated and hopeless negotiation, without first setting out the principle of what they wanted. I think Monsieur Barnier was open to that and I think the EU wanted mutual enforcement. At that stage, there was no question about weaponising the border; it was about how we could reach an agreement. We could have done much more then, and I still today think that this idea is it.

The Bill, then, is not about going backwards in the sense that it destroys what we have done; it actually says something about what we have done so far in two stages. The protocol, it seems to me, could only ever have been temporary, and the Windsor agreement, which I did not support, opened up the negotiation again, which was good, but the ask was so limited, and in some ways rather restrictive, that we have ended up with the principle being there, but the practical bit does not work. That was the moment when we should have used the opportunity to go back into mutual enforcement. What is so wrong about that? The EU already uses the principle in its dealings with other countries.

As I said in an intervention earlier, the classic example is New Zealand. The EU trusts the New Zealand veterinary officers—particular key ones, but they trust them all once they are registered—to say whether certain foodstuffs are, under SPS rules, packaged properly and agreeable under the EU rules. They are trusted to say that EU rules are met. That is a critical component. When those foodstuffs are shipped and arrive at Rotterdam, most often it comes up on the computer and they are waved through. Any checks that have to take place in Rotterdam for non-EU countries take place 30 km behind the border, and they are spot checks just in case something has happened en route or something else has changed on the way. In other words, things move smoothly through. But such arrangements were not agreed in the various agreements here.

Eventually, in trying to draft this idea together, I sat down with others to try to figure out how we could make mutual enforcement work. I give credit to the hon. and learned Member for North Antrim (Jim Allister) for having brought forward the Bill, because it gives us a chance to debate the matter. I know very well what goes on in this Chamber and I know only too well how Fridays work, and the sad part is that if the Government do not want to have any further debate on something, they arrange for it to be talked out. It has happened on both sides; cynicism exists on all sides. I understand that. Lots of people will have come in, particularly from London because they are closer, and they will do what they have to do to talk this out. The Bill is not going to get through; I never expected it to. [Interruption.] Honestly, do not object; Government Members know very well that that is exactly what happens. Some will be here because they believe in something—I look across at my constituency neighbour, the hon. Member for Walthamstow (Ms Creasy)—but the majority are not. Therefore, let us just understand fundamentally what we could have been discussing and what the current Government could now be engaged in; they could be talking to the EU about changing these arrangements.

The current arrangements are damaging relationships and causing issues around Northern Ireland. We know that; nobody is arguing that that is not the case. If we have such problems that affect the constitution and the smooth running of businesses both in Northern Ireland and the wider United Kingdom, then surely any Government would want to make sure those are settled. It is not a polemic, it is not a right or left wing thing to do; it is called practical governance to try to figure out how this works.

I did not agree with my Government when they brought forward the Windsor agreement in its final stages, and I voted against it. I voted against it because I thought they had lost a real opportunity. The EU had accepted that its imposition earlier on did not work and it had to change it, but what we ended up with was a de minimis change which did not solve the problems; in fact some of them have got worse.

When we strip out all the politics, the key component is that mutual enforcement requires each side to make reciprocal legal commitments to each other and to enforce the rules of the other with respect to trade across the border. In other words, we would accept that where our exporters export to the EU, we are responsible if they breach EU regulations. So if the EU says a company or individual is exporting goods in breach of the terms of its trade, the UK Government will take the responsibility to proceed against them, and vice versa for the EU.

That does not require no border, because there has always been a border in Northern Ireland; we just do not want a hard border. That was always the issue. People talk about borders, but they mean a hard border. I had some experience of that when I had to man one of the checkpoints there when I was sent to Northern Ireland. I hated doing it, but that was a hard border. We do not want a hard border and mutual enforcement obviates the need for a hard border. Borders will exist, and we talked about that in terms of currency and VAT.

[Mr Gregory Campbell]

On this mythical hard border, does the right hon. Gentleman agree that it would be impossible to implement such a thing for any land border of 300 miles with 280 crossing points, and that the process we are embarked upon is trying to get a two-way flow of trade that obviates the need for any of those checks anywhere on the border?

[Sir Iain Duncan Smith]

The real point is getting rid of the Irish sea checks; it is anathema that one part of the United Kingdom is now treated separately from the rest of the UK. That is surely a reasonable idea and if it is in this Bill then the Government should want to take it through to the next stage and debate it. This is what the Bill does. Mutual enforcement does not of itself remove customs duties; neither does it harmonise or require mutual recognition of standards. It works by inverting the usual approach to customs enforcement; duties may, for example, be imposed for anti-dumping reasons or due to subsidies that one party claims are injurious to itself or to companies as a result of goods failing to qualify for zero duty under rules of origin. That is what the Bill does. All the rest that has been talked about is not in this Bill; it is very simple and very practical. The trade and co-operation agreement between the EU and the UK already has an agreed mechanism, which is very important for identifying and addressing these distortions. If we are able to allow that and make changes, that is how it will work.

There are other areas, too, which I will speed through as quickly as possible. Mutual enforcement can also under these terms accommodate the collection of customs duty. The detailed procedures are obviously beyond the scope of briefing papers and the Bill, but the reality is that we could have a system whereby an order of goods from the UK to the Republic of Ireland triggers a UK export declaration and an EU import declaration such that in terms of the EU’s customs data any sums owed are put into the goods invoice and paid by the importer to the exporter. There are many other ways ahead that can be facilitated, particularly now that almost all of this is done using modern technology, not large sheathes of paper and with a man standing at the border with a ladle to check whether the brandy being imported or exported tastes like brandy. That does not happen any longer, but from some of the debates it would seem somehow we have not moved on from 17th-century customs requirements.

To ensure compliance with this regime, a penalty in this arrangement would apply to those parties who failed to follow the procedure. The penalty would apply to both exporters and hauliers, therefore incentivising all parties involved in the carriage of goods to ensure that appropriate EU customs duties are paid. By the way, the same would be required in the Republic for its importers. It should be noted—this is the important bit that has gone missing—that an analogous system would in any event be required for the red and green lane approach prescribed in the Windsor framework.

Is this going back? No. It is using what we have and ultimately making it better. That seems to me the practical principle behind this idea of mutual enforcement. We should have started in this place, but we now have an opportunity to look at this issue and decide if there is a better way to do it that will take some of the good stuff already there and improve it by saying to the EU that we want a smooth process between the EU and the UK, because everything else then follows. Many EU members already agree; I have heard their discussions.

I cannot remember who it was, but somebody got up and said, “Did we not think they were allies? Did we not think they were friends?” It is because we think they are allies and friends that we want to get rid of the things that make us have rows and arguments about the most practical issues that could be dealt with. That is the point of this mutual enforcement process: to get rid of the ludicrous arguments about who we are and who they are. We can then be very good allies and friends, which we are and will need to be over the next few years, as we enter arguably the most dangerous time that I can remember.

I have a point for the Government. Given that almost identical rules apply in the EU and the UK, the EU could, and arguably should, negotiate an SPS equivalence agreement with the UK, as it has done for countries as far away as Canada and New Zealand, as I have said before.

[Jim Allister]

Given the right hon. Member’s experience of international affairs, what does he think are the prospects for the present arrangements? Are they an incentive or a disincentive to securing a trade deal with the United States of America?

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[Sir Iain Duncan Smith]

I thought the hon. and learned Member might tempt me down that road. Whether we have a trade deal with the United States of America is way beyond my paygrade. No Government I could ever join would ever have me, so on that basis I will answer from my own perspective. Yes, there is a change in Administration in America. I understand one thing, because I negotiated a trade deal with the incoming President of the United States, about which I have never quite told the full story. It became very clear to me in those discussions that he wanted a trade deal, more than anything else, with the United Kingdom, and he said so.

How we go about that is a complicated issue. There is an easy way to do it, through what are called sector-by-sector trade arrangements, which are agreed before moving on to the next area. That is made more difficult by the arrangement in which, somehow, part of the United Kingdom now seems to be partly inside the EU. That makes it difficult for them to understand whether any goods and so on would slip through into the EU. That will cause a problem—it is not my place to say whether it is insurmountable, but these are unnecessary difficulties. However, if we had mutual enforcement, that would not be the case. It would be very clear at that point that that would actually be a very good basis for a trade deal with the United States to smooth our arrangements with them. They are our biggest trading partner and, ironically, unlike the EU, one that we have a surplus with and not a deficit of some significant degree.

I end on this point. In terms of what has happened over the last 30 or 40 years, there are big, deep gulfs and divides over anything that touches on Northern Ireland and its relationships with the UK and the rest of Ireland. I came here to look at the practicalities of a better way to sort out the trading relationships that leaves Northern Ireland as a solid part of the United Kingdom. Yes, it has a special place, because it is the one land border that we have with the EU, but that does not mean to say that we should treat it differently in terms of its arrangements with us here in Parliament. My worry is that we set those insurmountable problems ahead first and, at the end, we then do nothing. We could achieve this change. If the Government had their way, they would take all the bits from the agreement and try to discuss and implement them with the EU. The EU knows that that would not work. It is time to make some changes. Just talking out the Bill helps no one.

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[Fleur Anderson]

I am going to make progress.

As I said earlier, the core challenge remains the trilemma: how do we preserve the integrity of the UK’s internal market, avoid a hard border on the island of Ireland, and respect the legitimate interests of our EU partners in protecting their single market, just as we seek to protect ours? The Windsor framework provides an answer to a very difficult question. I say simply that, across several elections, the vast majority of right hon. and hon. Members elected to this place have been elected on a platform of avoiding a hard border. For good reason, then, we need to support the Windsor framework.

Thirdly, the Bill would serve to prejudice the democratic decision that the Northern Ireland Assembly is making itself. Last month, my right hon. Friend the Secretary of State for Northern Ireland initiated the progress for the Northern Ireland Assembly to decide on the continued application of articles 5 to 10 of the Windsor framework. That vote is provided for in the Windsor framework and under domestic law, which was strengthened under the terms of “Safeguarding the Union”. It is now a matter for Northern Ireland’s elected representatives to decide on. I am pleased that the elected representatives of the people of Northern Ireland are able, as part of the functioning devolved institutions, to exercise the important democratic scrutiny functions included in the Windsor framework. The Bill would fatally undermine the powers that those in the Assembly have over scrutinising regulations that apply in Northern Ireland.

The Government will only support sustainable arrangements for Northern Ireland that work for business, protect the UK’s internal market and uphold our international obligations. The Windsor framework does just that, and the Government are firmly committed to it, just as stridently as we are committed to the UK internal market and to Northern Ireland flourishing within a strengthened Union. Just as important is that we will be honest with the people of Northern Ireland about what is and is not possible, and what the trade-offs are with various options. There will be no more magical thinking; no reopening of the wardrobe into a political Narnia of mythical solutions to the practical issues that we must consider in respect of trade; and no more simplifications that work as soundbites but do not stand up in reality. At this crucial time, the people of Northern Ireland deserve honesty.

[Sir Iain Duncan Smith]

Does the Minister not agree that mutual enforcement is, in principle, about using what already exists in terms of trade? In the course of building on the Windsor agreement, might she consider influencing the EU to get rid of the border between Northern Ireland and the rest of the United Kingdom?

[Fleur Anderson]

I do not know where in the world mutual enforcement has worked. I understand how it can work in some limited ways, but not in the wholesale way outlined by the right hon. Member. I am afraid it is in the tradition of unreal answers to real and complex challenges to which the Windsor framework remains the only credible solution.