Oral Answers to Questions
Joanna Cherry Excerpts(2 years, 10 months ago)
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Owen Thompson (Midlothian) (SNP)
Joanna Cherry (Edinburgh South West) (SNP)
The Secretary of State for Northern Ireland (Brandon Lewis)
We are committed to boosting trade in Northern Ireland with both the rest of the United Kingdom and the rest of the world. The Northern Ireland protocol has, as I just said, impacted businesses. It is creating barriers to trade and causing disruption. It is the Government’s priority to deal with those issues and make the protocol work better for business. That is essential to ensuring Northern Ireland continues to prosper as part of the Union.
Brandon Lewis
We are seeing 200-plus businesses in Northern Ireland stopping delivering to customers in Northern Ireland, medicines and drugs having issues and challenges getting to Northern Ireland, consumers having reduced choice on the shelves, and garden centres unable to get the plants and seeds they want from the rest of the UK. That is a farcical situation. It is not sustainable. It is not fair or right for the people of Northern Ireland and it is right that we focus on correcting that.
Joanna Cherry
I wonder if I could invite the Secretary of State to actually answer the point made by my hon. Friend the Member for Midlothian (Owen Thompson). The most recent quarterly economic survey by the Northern Ireland chamber of commerce shows that 70% of Northern Ireland businesses believe that their unique trading position of being both within the UK and the EU single markets and the customs union presents opportunities for Northern Ireland. Does he agree with the vast majority of businesses in Northern Ireland? If so, why did his Government not fight for remain-voting Scotland to have the same benefits of dual access as Northern Ireland?
Brandon Lewis
I meet businesses across Northern Ireland representing all sectors of Northern Ireland on a regular basis, as does the Minister of State, Northern Ireland Office, my right hon. Friend the Member for Bournemouth West (Conor Burns). They are very clear: the protocol in its current format is not working. It is not sustainable. The EU offer is not good enough. They are very clear about that. That is something we are determined to fix. The hon. and learned Lady is absolutely right that if the protocol works in the way it was envisaged, it does create opportunities for Northern Ireland. The problem is that the EU’s requirements for implementation are failing Northern Ireland and we need to see that fixed.
United Kingdom Internal Market Bill
Joanna Cherry Excerpts(4 years, 3 months ago)
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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
I thank the hon. Member for his intervention. I think the answer was provided by the Northern Ireland Secretary when he spoke to the House on the issue and he said that—let us all think on these words—
“yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4”.—[Official Report, 8 September 2020; Vol. 679, c. 509.]
On that, he was right. Article 4 does require that the UK ensures compliance with paragraph 1 of the withdrawal agreement, including our courts, disapplying
“inconsistent or incompatible domestic provisions”.
Article 5 makes it absolutely clear that we have an obligation to
“refrain from any measures which could jeopardise the attainment of the objectives of this Agreement”,
which, as the Northern Ireland Secretary made clear, is the purpose of clauses 41 to 45. In adopting them, we are in breach of international law and unsettling the situation in Northern Ireland, to which the Minister rightly referred. Indeed, the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, who is a widely respected voice, said that the Government’s actions “may well undermine trust”.
Joanna Cherry
Does the answer to the question raised by the hon. Member for Stone (Sir William Cash) about the German constitutional court not lie in what our own United Kingdom Supreme Court said at paragraph 55 in the case of Miller v. Secretary of State for Exiting the European Union? Our own Supreme Court said that
“treaties between sovereign states have effect in international law and are not governed by the domestic law of any state.”
Is that not the answer under the domestic law of the United Kingdom?
Sir Iain Duncan Smith
That is why I gave way to my right hon. Friend—because he was there. I think he was a very good Minister too, by the way, for what it is worth.
The point is that for 10 years, Labour Governments and other Governments simply refused to put prisoners’ voting rights through. Finally, there was a fudge negotiation, where not all of what was asked for was agreed, but it was agreed that what had been done, I think on furlough—as I recall, prisoners on furlough had voting rights—was okay. That was not what was asked for.
Let us not be too pompous about this idea that international law is some God-given gospel that says, “Absolutely nobody can ever trespass away from this.” Many of these things are fudged anyway, and implementation is very important. I come back to section 38, which my hon. Friend the Member for Stone (Sir William Cash) initiated. That made it very clear that we would, if necessary, place our constitutional law ahead of both of those.
I make that point because in truth, we are now in exactly that state. That is why I believe that I can happily vote for this tonight. I am happy that, following the debate between my hon. Friend the Member for Bromley and Chislehurst and the Government, they have tabled amendment 66, which will give Parliament a chance to say yea or nay when the moment comes. But we are not in breach until we decide to implement this. This has been done before. It is important to show that we want to do this if necessary, but we would rather find an agreement between the parties.
I come back to the point that I made about good faith in principle. I see that Monsieur Barnier has threatened our negotiators that, if they do not agree with him—he has not, by the way, wanted to move anywhere near the Joint Committee to discuss these matters—the EU will, if necessary, not give us the status of third country. That seems a bizarre threat to make. The list of third countries, which my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) mentioned, is long and peculiar. Belarus, for example, which we watch almost nightly on the television, would have third country status. We would not have it, apparently. Others include the Central African Republic, China, the Islamic Republic of Iran—the list goes on. I think there are now 137 countries that would have third country status, but apparently to Mr Barnier, it would be quite acceptable for a country that has been very close to the EU for years to not have third country status. I think it is a hollow threat, but it is a peculiar threat to make, and it gives an indication of bad faith.
The EU is meant to avoid bad faith in this, and so are we. The whole idea of the Bill is to say, “Stop. Let’s consider this again. We do not want—and you should not want—to end up in a situation where we are running around on your laws. This is not what the agreement was meant to be, and we are not prepared to see our constitutional settlement trashed in the pursuit of your own vainglorious idea that somehow you’re going to keep hold of us and run us afterwards.” As my right hon. Friend said, we did not vote to be a subsidiary state; we voted for independence. That is the key point.
I am going to vote for this Bill, and I vote for it with a clean heart. I vote for it because so many areas—from state aid, to transfer of goods and agriproducts to labelling—will be affected unnecessarily. If the EU seriously wants to help and to get this done, it needs to return to the table, go into the Joint Committee as it said it would and accept what we are saying: we will not allow our constitution to become the prisoner of an EU that wants to have all power over the UK.
Joanna Cherry
I rise to speak in favour of amendments 43 and 44, in my name, and to support the amendments tabled by the Scottish National party, our friends from the SDLP and our friend from the Alliance party.
I will focus my comments on my amendments, which I tabled to work out just how far this Government are prepared to go in ousting the jurisdiction of the domestic courts in relation to judicial review and review under the Human Rights Act in clause 45, as it appears on the face of the Bill. I also wish to highlight, as I mentioned in an intervention on the Minister, that, in so far as clause 45 seeks to restrict judicial review in Scotland by circumscribing the supervisory jurisdiction of the Court of Session, this not only trespasses into devolved territory but may well breach another treaty: the treaty of Union between Scotland and England, article 19 of which preserves the independence of the Scottish legal system.
Before I address my amendments in detail, for the avoidance of doubt, my primary position—and I find myself curiously on the same ground as the right hon. Member for Maidenhead (Mrs May)—is that clauses 41 to 45 should not stand part of the Bill. Everything we heard from the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) was designed to hide from us the fact that we are talking about a bilateral treaty that was entered into by the Prime Minister and the United Kingdom less than a year ago, to deal with a specific situation that arose between the United Kingdom and the European Union; and the most controversial part of that treaty—the one dealing with Northern Ireland and the north of Ireland—is the one that this Government are seeking to drive a coach and horses through. That is what we are talking about, and that is what is so wrong.
Joanna Cherry
I will make some progress.
Such excuses as those that the Government’s Law Officers who remain in post have sought to make for this do not stand up. I am very proud, as a member of the Scottish Bar, that Lord Keen of Elie resigned last week, and I am proud of the reasons he gave for his resignation. The only thing I would say to him is, “What took you so long, Richard?”, but apart from that I am very proud. I think it will be very difficult for the British Government to find anybody of suitable seniority from the Scottish Bar to step into his shoes, but I am waiting with some amusement to see who they might find.
Joanna Cherry
No, I am going to make some progress.
It is what we would call at the Scottish Bar a load of old mince. That is not just my view; as I said in an intervention, it is the view of the United Kingdom Supreme Court, which said in the first Miller case, at paragraph 55, that
“treaties between sovereign states have effect in international law and are not governed by the domestic law of any state.”
I am terribly sorry to disappoint Conservative Members, but no matter how much they love their doctrine of parliamentary sovereignty—no matter how much it means to them—it cannot trump the obligations freely entered into by their Government under international law.
Joanna Cherry
No, I am not going to give way.
It simply does not work that way: Britannia does not rule the waves any longer and has not done so for some time.
I regret to say that while I have the greatest respect and the highest regard for the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Government amendment that his efforts have secured is wholly inadequate to meet both domestic and international concerns about this Bill. I cannot do much better than repeat what the Irish Foreign Minister said this afternoon: a Government with an 80-seat majority having a parliamentary lock is not much of a reassurance to any of us. I really do not think I need to say any more than that. Once more, we have a ruse to solve the problems of the Conservative party rather than a ruse to address our international legal obligations.
My amendments 43 and 44, as I said, seek to deal with clause 45. The English Bar Council and the Law Society of England and Wales have said of clause 45 that it
“would exclude judicial review of any regulations made under clauses 42 and 43 on grounds of incompatibility with domestic law…as well as international law.”
That exclusion of judicial review would also mean excluding any human rights review under the Human Rights Act or, indeed, the Equality Act 2010. As my hon. Friend the Member for Belfast South (Claire Hanna) said in her very eloquent speech, human rights are of course integral to the Good Friday agreement. It is a travesty that regulations made under clauses 42 and 43 should not be subject to judicial review or to human rights review across Great Britain, but a particular travesty in Northern Ireland. It undermines not just the principle of the rule of law but the principle of access to justice. It also contravenes article 4 of the withdrawal agreement, which the British Government freely signed up to, in which they undertook to ensure a right for individuals to rely directly on withdrawal agreement provisions.
It is difficult to be certain how the courts would interpret an ouster clause such as clause 45, but precedent suggests that it would be quite hard for them to uphold it unless it is expressed in unequivocal terms. My amendments seek to clear this up. Amendment 43 would exclude the Human Rights Act and the European convention on human rights from the definition of domestic and international law, and amendment 44 would ensure that
“nothing in Clause 45 ousts the jurisdiction of domestic courts in respect of judicial review of regulations made under Clauses 42 and 43.”
Subsequent to my tabling those amendments, the Government tabled amendments 64 and 65, which appear to acknowledge that judicial review claims could still be brought in certain limited circumstances. I am interested to hear from the Minister what those circumstances would be. Do they include the normal judicial review grounds of illegality, irrationality or procedural impropriety, or will they also include review on the grounds of human rights? I look forward to hearing from him on that.
My final point is the most important point from a Scottish point of view. In so far as clause 45 seeks to interfere with judicial review in Scotland, it is interfering with a rather different beast from judicial review in England: the inherent supervisory jurisdiction of the Court of Session in Edinburgh. In doing that, it strays into devolved territory and would therefore require a legislative consent motion, which I very much doubt would be forthcoming. Put simply, the Scottish Parliament is not in the business of ousting the court’s jurisdiction on judicial review or human rights grounds—nor should it be and neither should this Parliament.
Most importantly from a Scottish point of view, the supervisory jurisdiction of the Court of Session is an inherent jurisdiction, which is not conferred on it by legislation but has been there since its inception in 1532. It therefore predates the treaty of Union between Scotland and England in 1707. Legislation seeking to narrow the scope of that inherent jurisdiction risks falling foul of article 19 of the treaty of Union, which preserves the independence of Scotland’s legal system.
In Scotland, rather to our surprise, we learned from the UK Supreme Court that putting the Sewel convention on a legal footing did not protect us from the Government driving a coach and horses through it. As the legal position stands in the United Kingdom, it seems that the Government can get away with passing primary legislation that interferes in devolved matters without a legislative consent motion. A breach of article 19 of the treaty of Union might be a different matter, however, because the question of whether parts of the treaty are so fundamental that they cannot be overridden by an Act of this Parliament has been considered by courts north and south of the border, but never entirely resolved.
I simply remind Members that the doctrine of the supremacy of Parliament is an English doctrine. Even Dicey, the great high priest of parliamentary sovereignty, was prepared to recognise that those who framed the treaty of Union between Scotland and England believed in the possibility of creating an absolute sovereign legislature that was still bound by certain unalterable laws. Many of us in Scotland believe that one of the unalterable laws of the treaty of Union is that this Parliament cannot interfere with the inherent jurisdiction of the Court of Session.
Both those problems—the in-roads into the devolved competence and the undermining of article 19 of the treaty of Union—will continue, notwithstanding Government amendments 64 and 65. I suspect that the Government have not really thought about that because, let us be honest, they do not often think about the impact on Scotland of what they want to do. Many people in Scotland, including my fellow members of the legal profession, will see that as another example of the Government’s total disregard for devolution and for Scotland’s separate and distinct institutions.
That is yet another reason why for Scotland the only way out of the mess that the Conservative and Unionist party has created over Europe is independence. I am glad that so many more people in Scotland are realising that daily. [Interruption.] It is a terrible dreadful bore for Conservative Members, but I remind them that we spend an awful lot of time listening to them bang on about the European Union and how it prevents them from having their way. Well, the Scots are pretty sick of this Parliament preventing Scotland from having its way.
Martin Docherty-Hughes
From a historical perspective, my hon. and learned Friend may agree that we need to go back to the 15th or 16th century, because this is a modern-day English reformation that seeks to impose in Scotland a modern-day Brexit prayer book. The Kirk rejected it then and Scotland will reject it now.
Joanna Cherry
That is correct, and it is worrying to hear my hon. Friend talk about the Kirk as he and I were both brought up in the opposite persuasion, but of course the Church of Scotland is also protected by the treaty of Union. So Members on the Government Benches can mock away; they should feel free to continue their mocking, which is seen in Scotland, and simply feeds the desire for Scotland to go a different way. They should keep up the mocking, because it is helping my party’s cause and it is helping the cause of my country.
Karen Bradley
It is an honour to rise today in this debate, following a number of very thoughtful contributions from right hon. and hon. Members across the Chamber. Although it is an honour to be called to speak today, I cannot pretend that it is an enjoyable experience, and that is because of the conflict that I feel. I feel desperately uncomfortable. I want to support the Prime Minister and the Government, and I know how the Minister feels. I have sat on that Front Bench far too many times, knowing that people behind me did not agree with my position.
I want to support the Prime Minister. I want to see the whole United Kingdom leave the European Union, respecting the referendum result, but I am desperately uncomfortable about being asked to vote to break international law. My instinct tells me that what the Government are asking me to vote for tonight is not the right thing to do or, to be charitable, may not be doing things in the right way.
The Government have been clear—they are on the record—that paragraph (5) is a breach of the withdrawal agreement, and we are angels dancing on the head of the pin as to when the law is broken. The law will be broken, if these clauses are used. It might be at Royal Assent, or it might be at commencement of the Act. It might be when the order is laid after the parliamentary vote—I thank the Government for agreeing to respect that and for agreeing to that amendment. I would like to hear from the Minister exactly what the Government’s position is now as to when the law will be broken, because no parliamentarian wants to walk through the Lobby knowing they are about to break the law.
Much has been made of the role that respecting the Belfast Good Friday agreement has in this debate. Let us be clear: the Belfast Good Friday agreement was the result of great statecraft and the power of words over violence, but it was also a triumph of compromise—or, as I used to be told I had to call it, accommodation. It was a settlement that meant that people living in Northern Ireland could be comfortable in their own identities, be that British, Irish, both or neither. As the hon. Member for Belfast South (Claire Hanna) said earlier, it was written at a point when both the UK and Ireland were members of the EU. I want to be absolutely clear: the Belfast Good Friday agreement was not contingent on our both being members of the European Union. It was a result of great statecraft, compromise and people being prepared to lead, and it would have happened if both countries had not been members of the same economic bloc. But the fact that both countries were EU members meant that the foundations of the Belfast Good Friday agreement—the Northern Ireland Act 1998 that this House passed—were written without the need to deal explicitly with matters that European citizenship and membership conferred. There was no need to write about citizens’ rights and how somebody who identifies as Irish and lives in Northern Ireland can exercise their right to be a member of the European Union when the country in which they reside is no longer a member of the European Union. It did not go into the points on customs and declarations. It did not talk about that because it did not need to. In fact, the reason we have the Bill—and I want to make it clear that I support the Bill as a whole; it is part 5 with which I have a problem— is because we need it, as the settlements on devolution were written at a time when we were a member of the European Union. We did not need frameworks on agriculture, because matters that will be settled by the devolved Administrations were governed by rules in Brussels.
I support our taking back control of those matters. Again, I have to make it absolutely clear that this has nothing to do with leaving the European Union. It is about how we make sure that we do so in the right way, so that I can hold my head up high and look people in the eye and say that I am proud to be a parliamentarian in this Parliament, which respects the rule of law. We have to remember that the world will judge us by the way in which we respect the Belfast/Good Friday agreement, even more than our breaking the withdrawal agreement.
European Union (Withdrawal Agreement) Bill
Joanna Cherry ExcerptsWednesday 8th January 2020
(4 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 8 January 2020 - (8 Jan 2020)
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 38, page 20, line 10, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
The Chairman
With this it will be convenient to discuss the following:
Amendment 39, page 20, line 18, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 47, page 20, leave out lines 25 and 26.
Removing this subsection prevents Ministers from using secondary legislation to amend primary legislation in order to implement the withdrawal agreement.
Clause 18 stand part.
Amendment 40, in clause 19, page 21, line 15, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 41, page 21, line 25, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 42, page 21, line 34, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 43, page 21, line 44, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Clause 19 stand part.
Amendment 24, in clause 20, page 24, line 2, at end insert—
“(1A) The payment from the Consolidated Fund or the National Loans Fund to the EU or an EU entity of each sum under section (1) which results from the imposition of any penalty shall be subject to approval by resolution of the House of Commons.”
This amendment is intended to require parliamentary approval for the payment of any fines or penalty under the withdrawal agreement.
Clause 20 stand part.
Amendment 44, in clause 21, page 24, line 37, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 1, page 25, leave out lines 1 and 2 and insert—
“(2) A Minister of the Crown must, on or before 30 June 2020, publish a comprehensive economic impact assessment of the effect of the Ireland/Northern Ireland Protocol and regulations made under subsection (1) on—
(a) the UK’s Internal Market and the access of Northern Ireland goods to Great Britain and Great British goods to Northern Ireland;
(b) the Northern Ireland economy, including levels of imports and exports;
(c) fiscal and regulatory compliance of goods travelling from NI to GB and from GB to NI; and
(d) barriers to entry for third-country goods entering NI and GB from Ireland, the rest of the EU and third countries.
(2A) The Secretary of State must make arrangements for—
(a) a copy of each report published under subsection (2) to be laid before each House of Parliament, and conveyed to the Presiding Officer of each devolved legislature, by the end of the day on which it is published;
(b) a motion in neutral terms, to the effect that the House of Commons has considered the report, to be moved in the House of Commons by a Minister of the Crown; and
(c) a motion for the House of Lords to take note of the report to be tabled in the House of Lords and moved by a Minister of the Crown.
(2B) The motions required under subsections (2A)(b) and (c) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament.
(2C) The Secretary of State shall make a further report under subsection (2) on or before 31 October 2020 and at least every 12 months thereafter.”
This amendment would require the Government to deliver full transparency on the implications of the Ireland/Northern Ireland Protocol including barriers to trade between Great Britain and Northern Ireland.
Amendment 48, page 25, line 2, leave out “(including modifying this Act).”
This amendment would prevent Ministers making regulations under this section to modify the European Union (Withdrawal) Act 2018.
Amendment 33, page 25, line 2, at end insert “except repealing section 7A.”
This amendment would remove the uncertainty as to whether Ministers could amend or repeal the proposed new section 7A of the European Union (Withdrawal) Act 2018.
Amendment 50, page 25, line 3, leave out “may” and insert “must”.
In conjunction with Amendment 12, this would require the Government to ensure unfettered access for Northern Ireland goods to the GB market when it makes regulations implementing the Protocol.
Amendment 12, page 25, line 4, after first “the” insert “unfettered”.
This amendment would require regulations to facilitate unfettered access of qualifying Northern Ireland goods to the market within Great Britain.
Amendment 13, page 25, line 16, at end insert—
“(6A) Regulations under subsection (1) must include provision to prevent any direct or indirect commercial discrimination that may arise to the detriment of businesses (including farms) in Northern Ireland as a result of the Ireland/Northern Ireland Protocol.”
This amendment is intended to prevent direct or indirect commercial discrimination against Northern Ireland products.
Amendment 14, page 25, line 16, at end insert—
“(6B) Regulations under subsection (1) must include provision to prevent non-tariff barriers being imposed in Great Britain to exclude Northern Ireland products except to the extent strictly required by the Ireland/Northern Ireland Protocol as long as it remains in force.”
This amendment is intended to prevent a ‘not available in / do not ship to NI’ approach where no sound competitive reasoning is supplied, in order to protect Northern Ireland consumers and businesses.
Amendment 15, page 25, line 16, at end insert—
“(6C) Regulations under subsection (1) must include provision to prevent the exclusion of Northern Ireland produce or products from British marketing campaigns or assurance, trade and labelling schemes.”
This amendment is intended to prevent Northern Ireland products being excluded from ‘Red Tractor’ or ‘Buy British’ marketing schemes.
Amendment 10, page 25, line 27, at end insert—
“(8) But regulations under this section may not—
(a) impose or increase taxation or fees,
(b) make retrospective provision,
(c) create a relevant criminal offence,
(d) establish a public authority,
(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or
(f) amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”
This amendment would apply the usual restrictions on Ministers’ delegated power to make regulations under the Government’s proposed new section 8C of the European Union (Withdrawal) Act 2018.
Clause 21 stand part.
Amendment 45, in clause 22, page 25, line 37, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 46, page 26, line 3, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 51, page 26, line 13, leave out “may” and insert “must”.
In conjunction with Amendment 16, this would require devolved authorities to ensure unfettered access for Northern Ireland goods to the GB market when making regulations implementing the Protocol.
Amendment 16, page 26, line 14, after first “the” insert “unfettered”.
This amendment would require regulations to facilitate unfettered access of qualifying Northern Ireland goods to the market within Great Britain.
Amendment 17, page 26, line 25, at end insert—
“(6A) Regulations under sub-paragraph (1) must include provision to prevent any direct or indirect commercial discrimination that may arise to the detriment of businesses (including farms) in Northern Ireland as a result of the Ireland/Northern Ireland Protocol.”
This amendment is intended to prevent direct or indirect commercial discrimination against Northern Ireland products.
Amendment 18, page 26, line 25, at end insert—
“(6B) Regulations under sub-paragraph (1) must include provision to prevent non-tariff barriers being imposed in Great Britain to exclude Northern Ireland products except to the extent strictly required by the Ireland/Northern Ireland Protocol as long as it remains in force.”
This amendment is intended to prevent a ‘not available in / do not ship to NI’ approach where no sound competitive reasoning is supplied, in order to protect Northern Ireland consumers and businesses.
Amendment 19, page 26, line 25, at end insert—
“(6C) Regulations under sub-paragraph (1) must include provision to prevent the exclusion of Northern Ireland produce or products from British marketing campaigns or assurance, trade and labelling schemes.”
This amendment is intended to prevent Northern Ireland products being excluded from ‘Red Tractor’ or ‘Buy British’ marketing schemes.
Clause 22 stand part.
Amendment 34, in clause 23, page 28, line 3, at end insert—
“(2) For the avoidance of doubt and without prejudice to the generality of Schedule 3, the reference in Section 7A of the European Union (Withdrawal) Act 2018 (other directly applicable or directly effective aspects of the withdrawal agreement) to rights, powers, liabilities, obligations, restrictions that as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom, includes Article 2(1) of the Protocol on Ireland/Northern Ireland of the withdrawal agreement.”
This amendment would ensure that any person may rely directly on Article 2(1) of the Protocol on Ireland/Northern Ireland before any courts in the United Kingdom against all public bodies, including UK Ministers, and private bodies, such as employers.
Clause 23 stand part.
Amendment 32, in schedule 3, page 61, line 17, at end insert—
“4A After section 69D insert—
‘69E Notice to be given to Commission
(1) A court or tribunal shall order notice of any issue which affects law or practice relating to the protection of human rights in any proceedings before it to be given to the Northern Ireland Human Rights Commission (unless the Commission is a party to the proceedings).
(2) Where notice is given to the Commission under subsection (1), the court or tribunal shall—
(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and
(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.
(3) For the purposes of this section, “decision” shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.’”
This amendment would ensure the Northern Ireland Human Rights Commission is notified of cases relevant to the exercise of its functions under section 69 of the Northern Ireland Act 1998, similar to devolution notices provided to the Attorney General; and to ensure coherence with exercise of functions under the new dedicated mechanism provisions.
Amendment 30, page 63, line 39, at end insert—
“(3) A court or tribunal shall order notice of any issue which arises under Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement in any proceedings before it to be given to the Northern Ireland Human Rights Commission (unless the Commission is a party to the proceedings).
(4) Where notice is given to the Commission under subsection (3), the court or tribunal shall—
(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and
(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.
(5) For the purposes of this section, ‘decision’ shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.”
This amendment would create a requirement for a court or tribunal to notify the Northern Ireland Human Rights Commission of cases relevant to the dedicated mechanism, similar to devolution issue notification already provided to the Attorney General. The proposal would result in an amendment to new section 78C of the Norther Ireland Act 1998.
Amendment 31, page 63, line 39, at end insert—
“(3) A court or tribunal shall order notice of any issue which arises under Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement in any proceedings before it to be given to the Equality Commission of Northern Ireland (unless the Commission is a party to the proceedings).
(4) Where notice is given to the Commission under subsection (3), the court or tribunal shall—
(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and
(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.
(5) For the purposes of this section, ‘decision’ shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.”
This amendment would create a requirement for a court or tribunal to notify the Equality Commission of Northern Ireland of cases relevant to the dedicated mechanism, similar to devolution issue notification already provided to the Attorney General. The proposal would result in an amendment to new section 78C of the Northern Ireland Act 1998.
That schedule 3 be the Third schedule to the Bill.
Amendment 36, in clause 24, page 28, leave out line 15.
This amendment removes the bar on the Joint Committee recommending an alteration in the functions of an existing implementation body under the Belfast (Good Friday) Agreement.
Clauses 24 and 25 stand part.
Amendment 49, in clause 26, page 30, leave out lines 9 to 49 on page 30 and lines 1 to 15 on page 31.
This amendment would remove the power of Ministers to specify the circumstances in which lower courts within the domestic legal systems of the UK could depart from the rulings of the Court of Justice of the European Union after the transition or implementation period.
Clauses 26 to 36 stand part.
Amendment 29, in clause 37, page 37, line 2, leave out from “Europe),” to the end of line 19 and insert
“after subsection (1) insert—
‘(1A) In seeking to negotiate an agreement under subsection (1), it shall be an over-riding objective of the Minister of the Crown to secure outcomes which match as closely as possible those which applied before exit day under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) in so far as they relate to an application for the UK to take charge of or take back an applicant who is an unaccompanied.’”
This amendment seeks to maintain the status quo for applications for international protection lodged by unaccompanied children who are third-country nationals or stateless persons.
Amendment 26, page 37, line 3, leave out from “Europe)” to the end of line 19 and insert
“the following amendments are made—
‘(a) After subsection (1) insert—
(1A) The Secretary of State must, before IP completion day, make provision to ensure that, after the United Kingdom’s withdrawal from the EU, an unaccompanied child who has made an application for international protection to a member State may, if it is in the child’s best interests, come to the United Kingdom to join a relative who—
(a) is a lawful resident of the United Kingdom, or
(b) has made a protection claim which has not been decided.”
(b) In subsection (2) after “(1)(a)(i)” insert “and (1A)(a)”.
(c) In subsection (3) after “(1)(a)(ii)” insert “and (1A)(b)”.’”
This amendment would require the UK Government to guarantee continued family reunion rights for unaccompanied child refugees, while retaining the requirement on the Government to negotiate an agreement with the EU that protects those rights.
Amendment 4, page 37, line 3, leave out from “Europe)” to the end of the Clause and insert
“after subsection (3) insert—
‘(3A) If, three months after this Act comes into force, no agreement achieving the objective contained in subsection (1) has been concluded with the European Union, a Minister of the Crown must make a statement to the House of Commons setting out—
(a) the steps taken by Her Majesty’s government, and the progress made in negotiations with the European Union, for the purpose of achieving the objective in subsection (1); and
(b) whether in the Minister’s opinion an agreement with the European Union achieving the objective of subsection (1) is likely to be achieved by IP completion day and, if not, setting out the reasons for this.
(3B) Following the making of the first Statement referred to in subsection (2), and until such time as an agreement satisfying the objective contained in subsection (1) is reached with the European Union, the Minister shall, at least as frequently as every 28 days thereafter, make further statements in accordance with sections (3A)(a) and (b).’”
This amendment would protect the right for unaccompanied child refugees to be reunited with their family after Brexit.
Amendment 28, page 37, leave out lines 5 to 19 and insert—
“(1) A Minister of the Crown must, within 3 months of this Act coming into force, make provision for take charge requests from unaccompanied minors.
(1A) Regulations made under subsection (1) must operate in such a way that the provisions of Regulation (EU) No 604/2013 as they relate to unaccompanied minors are effective in UK domestic law.
(1B) The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 are amended by omitting subparagraph 3(h) in Part 2 of Schedule 1 to those Regulations.
(1C) In this section, “take charge requests” and “unaccompanied minor” have the same meaning as under Regulation (EU) No 604/2013.”
This amendment will ensure that the UK continues to accept take charge requests from unaccompanied minors.
Clause 37 stand part.
New clause 1—Parliamentary sovereignty over negotiations for the future relationship—
‘After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—
“13C Negotiations for future relationship
(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.
(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.
(3) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—
(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown that can be amended by the House of Commons so as to change the objectives for the future relationship, and
(b) a motion for the House of Lords to take note of that statement has been moved in that House.
(4) Prior to the House of Commons’s consideration of a motion under subsection (3)(a), a Minister of the Crown must have consulted with each devolved administration on the negotiating mandate.
(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—
(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and
(b) the subject of a motion of the kind mentioned in subsection (3)(b).
(6) The Secretary of State must publish the negotiating text of a proposed future relationship agreement on the same day that they are shared with EU negotiators.
(7) After the end of each reporting period, a Minister of the Crown must—
(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—
(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (3), and
(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and
(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—
(i) the Scottish Ministers,
(ii) the Welsh Ministers, and
(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.
(8) Subsections (9) and (10) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.
(9) A Minister of the Crown must, within one week of an agreement outlined in subsection (8), lay before each House of Parliament—
(a) a statement that political agreement has been reached, and
(b) a copy of the negotiated future relationship treaty.
(10) Prior to the laying of the text of the proposed treaty, the Secretary of State must have consulted with each devolved administration on the text of the proposed agreement and taken their views into account, with special consideration given to matters relating to devolved competences.
(11) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—
(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or
(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.
(12) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (11) applies in relation to the ratification of that treaty.
(13) In this section—
“devolved legislature” means—
(a) the Scottish Parliament,
(b) the National Assembly for Wales, or
(c) the Northern Ireland Assembly;
“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;
“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;
“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;
“reporting period” means—
(a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and
(b) each subsequent period of one month;
“statement on objectives for the future relationship with the EU” means a statement—
(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and
(b) published in such manner as the Minister making it considers appropriate;
“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—
(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and
(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;
“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).”’
This new clause restores the role for Parliament in providing scrutiny and oversight in the negotiations over the UK’s future relationship with the EU.
New clause 6—Parliamentary approval of the future relationship—
“(1) The Secretary of State may not engage in negotiations on the future relationship between the UK and the EU until a Minister of the Crown has laid a draft negotiating mandate before each House of Parliament and—
(a) moved an amendable motion in the House of Commons containing the text of the draft negotiating mandate;
(b) the draft negotiating mandate (as amended) has been approved by a resolution of the House of Commons, and
(c) a motion for the House of Lords to take note of the draft negotiating mandate has been moved in that House by a Minister of the Crown.
(2) The draft negotiating mandate must set out in detail—
(a) the UK’s negotiation objectives,
(b) all fields and sectors to be included in the proposed negotiations,
(c) the principles to underpin the proposed negotiation,
(d) any limits on the proposed negotiations, and
(e) the desired outcomes from the proposed negotiations.
(3) Prior to laying the draft negotiating mandate, a Minister of the Crown must have consulted each devolved administration on the negotiating mandate.
(4) Prior to the House’s consideration of a motion under subsection (1)(b), a Minister of the Crown must lay before both Houses of Parliament a sustainability impact assessment conducted by a credible body independent of government following consultation with—
(a) each devolved administration,
(b) public bodies, businesses, trade unions and non-governmental organisations which, in the opinion of the independent body, have a relevant interest, and
(c) the public.
(5) The assessment shall include both qualitative and quantitative assessments of the potential impacts of the proposed trade agreement, including—
(a) social,
(b) economic,
(c) environmental,
(d) gender,
(e) equalities,
(f) climate change,
(g) human rights,
(h) labour,
(i) development, and
(j) regional
impacts.
(6) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the negotiating mandate approved under subsection (1)(b).
(7) After the end of each reporting period, a Minister of the Crown must—
(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—
(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the negotiating mandate approved under subsection (1)(b), and
(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that mandate, an explanation of why that is so, and
(b) lay before each House of Parliament the latest rounds of negotiating texts, by the end of each reporting period, and
(c) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—
(i) the Scottish Ministers,
(ii) the Welsh Ministers, and
(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.
(8) Subsections (9) to (13) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.
(9) A Minister of the Crown must lay before each House of Parliament—
(a) a statement that political agreement has been reached, and
(b) a copy of the negotiated future relationship treaty.
(10) Prior to the laying of the text of the proposed treaty, the Secretary of State must have consulted with each devolved administration on the text of the proposed agreement and taken their views into account, with special consideration given to matters relating to devolved competences.
(11) Prior to considering a motion approving the text of the negotiated future relationship treaty, the Government must lay before each House of Parliament a response to any report by a relevant Parliamentary committee (such as the Exiting the EU select committee) containing a recommendation in relation to the ratification of the agreement.
(12) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on an amendable motion moved by a Minister of the Crown and—
(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or
(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.
(13) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (11) applies in relation to the ratification of that treaty.”
This new clause ensures that MPs get a guaranteed vote with an amendable motion on the EU-UK Future Relationship and negotiating objectives, and sets out scrutiny of the negotiating mandate. It requires a sustainability impact assessment of the future relationship; the regular release of negotiation texts; and engagement with devolved administrations.
Amendment (a) to new clause 6, in line 39, after “(j) regional” insert “(k) health”
New clause 11—Consent and the Ireland/Northern Ireland Protocol—
“(1) Nothing in this Act affects section 4(5) and 42 of the Northern Ireland Act 1998.
(2) Accordingly, if 30 of its members petition the Northern Ireland Assembly expressing their concern about a matter which is to be voted on by the Assembly, the vote on that matter shall require cross-community support.
(3) ‘Cross-community support’ in relation to a vote in the Northern Ireland Assembly on any matter, means—
(a) the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or
(b) the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting.
(4) “Designated Nationalist” means a member designated as a Nationalist in accordance with standing orders of the Northern Ireland Assembly and ‘designated Unionist’ is construed accordingly.”
This new Clause re-states the existing law on the operation of cross-community support in votes of the Northern Ireland Assembly.
New clause 12—Consent and the Ireland/Northern Ireland Protocol (No. 2)—
“(1) Notifying the European Union of the outcome of the democratic consent processes under Article 18 of the Ireland/Northern Ireland Protocol is a matter for the Government of the United Kingdom under paragraph 3 of Schedule 2 to the Northern Ireland Act 1998.
(2) The Government of the United Kingdom must seek to apply any democratic consent process under or in connection with the Withdrawal Agreement in conformity with existing practice on votes requiring cross-community support in the Northern Ireland Assembly.
(3) The Government of the United Kingdom must accordingly seek to withdraw and replace any parts of the Declaration of 17 October 2019 by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the Democratic consent in Northern Ireland provision of the Protocol on Ireland/Northern Ireland which conflict with the existing practice on votes of the Northern Ireland Assembly requiring cross-community support.”
Paragraph 3(a) of the Declaration of 17 October 2019 by Her Majesty’s Government concerning the operation of the Democratic consent in Northern Ireland provision of the Ireland/Northern Ireland Protocol requires a threshold of a majority of members of the Northern Ireland Assembly present and voting. This new Clause seeks to replace that threshold with the normal cross-community support process.
New clause 13—UK internal market—
“(1) The Government of the United Kingdom must maintain and strengthen the integrity and smooth operation of the internal market of the United Kingdom of Great Britain and Northern Ireland.
(2) Accordingly it is a priority for the Government of the United Kingdom in negotiations on the future relationship with the EU to reach agreement to supersede any provisions of the Ireland/Northern Ireland Protocol which impede or conflict with the duty in subsection (1).”
This new Clause seeks to replace any provisions of the Ireland/Northern Ireland Protocol which fail to maintain and strengthen the integrity and smooth operation of the internal market of the United Kingdom of Great Britain and Northern Ireland.
New clause 14—Sovereignty and Northern Ireland—
“(1) Nothing in this Act contradicts Article 6 of the Union with Ireland Act 1800.
(2) Accordingly, Her Majesty’s subjects of Great Britain and Northern Ireland are entitled to the same privileges, and to be on the same footing as to encouragements and bounties on the like articles, being the growth, produce, or manufacture of either country respectively, and generally in respect of trade and navigation in all ports and places in the United Kingdom and its dependencies; and that in all treaties made by Her Majesty, her heirs, and successors, with any foreign power, Her Majesty’s subjects of Northern Ireland shall have same the privileges, and be on the same footing as Her Majesty’s subjects of Great Britain.”
This new Clause re-states the fundamental constitutional principle of unfettered trade between Northern Ireland and Great Britain.
New clause 15—Sovereignty and Northern Ireland (No.2)—
“(1) Nothing in this Act affects the status of Northern Ireland set out in section 1 of the Northern Ireland Act 1998.
(2) Accordingly, Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1 to the Northern Ireland Act 1998.”
This new Clause re-states the fundamental constitutional principle of Northern Ireland remaining part of the United Kingdom, unless a majority of the people of Northern Ireland vote to decide otherwise.
New clause 17—Objectives during negotiations—
“(1) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—
(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown,
(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown,
(c) a motion relating to that statement has been approved by a resolution of the National Assembly for Wales,
(d) a motion relating to that statement has been approved by a resolution of the Scottish Parliament,
(e) a motion relating to that statement has been approved by a resolution of the Northern Ireland Assembly.
(2) Notwithstanding subsection 1(e), a Minister of the Crown may engage in negotiations on the future relationship with the EU if the Northern Ireland Assembly has not approved the appointment of a First Minister and deputy First Minister within six weeks of the day on which this Act is passed.”
This new clause would require the Government to seek the consent of all the parliaments of the UK for its objectives during negotiations on the future relationship with the EU.
New clause 21—International trade—
“(1) The Government shall, during the implementation period, use its flexibilities under Article 129(4) of the Withdrawal Agreement to negotiate trade agreements with other parties.
(2) The Government shall, from 1 February 2020, and subject to the procedures for participation in the World Trade Organisation (WTO), exercise full rights as an individual member of the WTO and shall seek to—
(a) join any relevant committees and sub-committees that serve the UK‘s national interest, and
(b) speak in the WTO on all matters that serve the UK‘s national interest, notwithstanding the Duty of Sincere Co-operation under Article 4(3) of the Treaty on European Union and the Common Commercial Policy which are applicable during the implementation period.”
This new clause would mandate the Government to participate actively in the World Trade Organisation to serve the UK’s national interest.
New clause 22—Joint Committee representation from Northern Ireland—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BA Joint Committee representation from Northern Ireland
The United Kingdom delegation to the Joint Committee must always include representation from Northern Ireland, namely either—
(a) a representative agreed jointly by the First Minister and deputy First Minister, or
(b) in period when there is no Northern Ireland Executive, a representative nominated by the Head of the Northern Ireland Civil Service.’”
This new clause would require Northern Ireland to be represented on the Joint Committee.
New clause 23—Joint Committee and the Belfast Agreement—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BB Joint Committee and the Belfast Agreement
The United Kingdom representatives on the Joint Committee must have due regard for all aspects of the Belfast Agreement within their work.’”
This new clause would require UK representatives on the Joint Committee to have due regard for all aspects of the 1998 Belfast (Good Friday) Agreement within their work.
New clause 24—Joint Committee and Article 50 phase 1 report—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BC Joint Committee and Article 50 phase 1 report
The United Kingdom representatives on the Joint Committee must have due regard within their work to the UK government commitments in the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.’”
This new clause would require UK representatives on the Joint Committee to have due regard within their work to the UK government commitments in the joint report of 8 December 2017 from the negotiators of the EU and the UK on phase 1 of the Article 50 negotiations, including its references to unfettered access for Northern Ireland businesses to the whole of the United Kingdom internal market.
New clause 25—Specialised Committee on the Ireland/Northern Ireland Protocol Group representation from Northern Ireland—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BD Specialised Committee on the Ireland/Northern Ireland Protocol Group representation from Northern Ireland
The United Kingdom delegation on the Specialised Committee on the Ireland/Northern Ireland Protocol Group must always include representation from Northern Ireland, either—
(a) agreed jointly by the First Minister and deputy First Minister, or
(b) in period when there is no Northern Executive, nominated by the Head of the Northern Ireland Civil Service.’”
This new clause would require Northern Ireland to be represented on the Specialised Committee on the Ireland/Northern Ireland Protocol Group established under Article 14 of the Ireland/Northern Ireland Protocol.
New clause 26—Joint Consultative Working Group representation from Northern Ireland—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BE Joint Consultative Working Group representation from Northern Ireland
The United Kingdom representatives on the Joint Consultative Working Group must always include representation from Northern Ireland, either—
(a) agreed jointly by the First Minister and deputy First Minister, or
(b) in period when there is no Northern Executive, nominated by the Head of the Northern Ireland Civil Service.’”
This new clause would require Northern Ireland to be represented on the Joint Consultative Working Group established under Article 15 of the Ireland/Northern Ireland Protocol.
New clause 39—Fisheries—
“(1) Ministers of the Crown have as an objective in negotiations with the EU on the future relationship preserving, protecting and promoting the future of the fisheries industry based in Northern Ireland.
(2) In order to promote unfettered access of Northern Ireland fishermen to the UK internal market, Ministers must seek an agreement with the EU that fish caught in compliance with UK fisheries policy by trawlers based in Northern Ireland and landed in UK harbours for the UK internal market will not require after the end of the implementation period any more documentation than was required before exit day.”
This new clause aims to address a specific example of unfettered access in order to avoid an increase in paperwork being required for the Northern Ireland fishing industry after the UK leaves the EU.
New clause 40—State aid—
“(1) The UK Government must exercise its responsibilities for implementing and applying the provisions of Union law under Article 12 of the Protocol on Ireland/Northern Ireland in accordance with this section.
(2) The UK Government must, when exercising its responsibilities with respect to Article 10 of the Protocol (State aid) in relation to a Northern Ireland product, take no account of whether any products originating from Great Britain that are contained in that Northern Ireland product may have received state aid.”
This new clause would provide that any state aid provided to GB products that are included in Northern Ireland products cannot be taken into account when the UK Government assesses the state aid status of those NI products.
New clause 41—Regulatory divergence—
“(1) The Competition and Markets Authority must at intervals of not more than 12 months publish an assessment as to whether the effect of any regulatory divergence between the UK and the EU has been to place Northern Ireland businesses at a competitive disadvantage within the UK internal market that would constitute grounds for the UK to take safeguard measures under paragraph 1 of Article 16 of the Protocol on Ireland/Northern Ireland.
(2) The first assessment under subsection (1) shall be published no later than 12 months after the last day of the implementation period.
(3) If the Competition and Markets Authority makes an assessment under subsection (1) that the effect of any regulatory divergence is that there are grounds for the UK to take safeguard measures, the UK Government must within three months of receiving that assessment take safeguard measures under Article 16 of the Protocol that are in its opinion sufficient to remedy the competitive disadvantage.
(4) The Competition and Markets Authority shall report its opinion as to the adequacy and effectiveness of any safeguard measures under subsection (3) when making its next assessment under subsection (1).”
This new clause would require regular assessments by the CMA as to whether regulatory divergence between the UK and the EH has put Northern Ireland businesses at a serious competitive disadvantage, and in the event of such a finding would require the Government to remedy that disadvantage.
New clause 42—Specialised Committees—
“(1) Representatives of the United Kingdom attending specialised committees convened under Article 165 of the Withdrawal Agreement have a duty to represent the interests of Northern Ireland as an integral part of the United Kingdom.
(2) The United Kingdom Government must make arrangements for the Northern Ireland Executive to nominate at least one representative to the specialised committee on issues related to the implementation of the Ireland/Northern Ireland Protocol (see Article 165 (v) of the withdrawal agreement and Article 14 of the Protocol) and to each of the other specialised committees.
(3) In the absence of a Northern Executive, the Secretary of State must nominate representatives under subsection (2) after consulting the political parties comprising Members elected to the Northern Ireland Assembly.”
This new clause would ensure Northern Ireland representation on the specialised committees established under the Withdrawal Agreement.
New clause 43—Asylum claims after exit day—
“A Minister of the Crown must seek to negotiate, on behalf of the United Kingdom, an agreement with the EU which, after the United Kingdom‘s withdrawal from the EU, secures outcomes matching as closely as possible those which applied before exit day under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third- country national or a stateless person (recast).”
This new clause seeks to maintain the status quo for applications for international protection lodged by a third-country national or a stateless person under the Dublin III process.
New clause 44—Preventing discrimination—
“(1) A power of a Minister of the Crown under the law of England and Wales or of Scotland to make, confirm or approve subordinate legislation may not be exercised, on or after IP completion day, in a way that would result in law that treats qualifying NI goods differently from GB good, unless the difference in treatment is justified as mentioned in subsection (2).
(2) A difference in treatment is justified only if it is shown to be necessary and can deliver material benefits for the purposes of—
(a) protecting health of life of humans, animals or plants, or the environment,
(b) protecting national security, or
(c) ensuring that those involved in the production, supply or use of qualifying NI goods are put in a position that is no less favourable overall than those involved in the production, supply or use of GB goods.
(3) Subsection (1) applies to a power whether conferred before, on or after IP completion date.
(4) A Minister of the Crown must by regulations define ‘GB goods’ for the purposes of this section.”
This new clause would prevent a Minister of the Crown under the law of England and Wales or of Scotland using the power to make, confirm or approve subordinate legislation, on or after IP completion day, in a way that would result in law that treats qualifying NI goods differently from GB goods, unless the difference in treatment is justified as mentioned in subsection (2).
New clause 47—Accountability of the Joint Committee—
“After section 18 of the European Union (Withdrawal) Act 2018 insert—
‘18A Accountability of the Joint Committee
(1) A motion appointing the United Kingdom’s co-chair of the Joint Committee shall be laid before and approved by both Houses of Parliament.
(2) The United Kingdom’s co-chair of the Joint Committee shall always request that, unless for reasons of national security, all meetings of the Joint Committee are conducted in public.
(3) As far as is permitted by Rule 10 of Annex VIII to the withdrawal agreement, a Minister of the Crown must publish all decisions and recommendations adopted by the Joint Committee.
(4) Before attending each session of the Joint Committee a Minister of the Crown shall make an oral statement to the House of Commons setting out—
(a) the purpose and agenda of that Joint Committee meeting;
(b) the intended policy to be pursued by the Minister attending that Joint Committee meeting; and
(c) as far as possible the economic, social and environmental impact of any proposition to be determined at the Joint Committee.’”
This new clause requires the UK’s co-chair of the Joint Committee to be approved by Parliament, to ask the EU for Joint Committee meetings to be held in public where possible, for decisions of the Joint Committee to be published, and for a Minister to make a statement to the House of Commons ahead of each Joint Committee meeting.
New clause 52—Meaning of ‘unfettered access’—
“(1) In sections 21 and 22, ‘unfettered access’ for qualifying Northern Ireland goods means that businesses in Northern Ireland must continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market.
(2) Northern Ireland businesses shall enjoy the rights under subsection (1) regardless of whether they trade directly with Great Britain or trade via Dublin port.”
This new clause defines what ‘unfettered access’ means for the purposes of Amendments 12 and 16.
New clause 53—Duty of consultation when making regulations in connection with the Ireland/Northern Ireland Protocol—
“Before making regulations under sections 21 and 22, the Government and the devolved authorities must consult, and take account of the views of, the Northern Ireland Executive.”
This new clause would require the UK Government and the devolved authorities to consult and take account of the views of the Northern Ireland Executive before making regulations which could affect Northern Ireland’s place within the UK internal market.
New clause 54—Consent for any new trade frictions—
“(1) Regulations that would introduce new requirements on goods traded from Northern Ireland to Great Britain (including, but not restricted to, import customs declarations or origin checks) may not come into force without the consent of the Northern Ireland Assembly.
(2) No additional official or administrative costs consequent on any such regulations may be recouped from the private sector.”
This new clause would require the consent of the Northern Ireland Assembly before further trade frictions are imposed from Northern Ireland to Great Britain and would protect Northern Ireland businesses from paying for the administrative costs.
New clause 55—Northern Ireland’s place in the UK internal market—
“(1) As part of its obligation under Article 6.2 of the Protocol on Ireland/Northern Ireland to use its best endeavours to facilitate trade between Northern Ireland and other parts of the UK, the UK Government must—
(a) publish an assessment at least every 12 months of any negative impacts on businesses and consumers arising from the Protocol on trade between Great Britain and Northern Ireland and vice versa; and
(b) develop mitigations to safeguard the place of Northern Ireland businesses and consumers in the UK internal market.
(2) The assessment published under paragraph (1)(a) must include assessment of the impact of any actual or proposed regulatory or trade policy divergence on Northern Ireland’s place in the UK Internal Market.
(3) Any official or administrative costs arising from the duties under subsections (1) and (2) may not be recouped from the private sector.”
New clause 57—Consultation with the British Irish Council—
“The British Irish Council must be consulted prior to any proposed changes in standards relating to food, the environment or employment in the process of negotiations for new trading relations between the United Kingdom and the European Union.”
New clause 58—Consultation with the British Irish Council (No. 2)—
“The British Irish Council must be consulted prior to any proposed changes in the United Kingdom’s devolution settlement as a direct result of the United Kingdom leaving the European Union, or any changes to the devolution settlement resulting from future trade agreements.”
New clause 60—Establishment of a mitigation package—
“(1) The United Kingdom Government must guarantee and fund the establishment of a mitigation package for businesses and communities in Northern Ireland.
(2) The impact and success of this fund shall be reviewed by an independent economic body every six months.
(3) The fund must be established in consultation with the devolved administration in Northern Ireland.”
New clause 61—Provision for EU Referendum in Northern Ireland—
“(1) Provision must be made to allow for Northern Ireland with the consent of a majority of people in Northern Ireland voting in a poll held for the purpose, to remain or (as the case may be) to join the European Union.
(2) If the expressed wish by a majority in such a poll is for Northern Ireland to remain or join the European Union, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as are agreed between Her Majesty‘s Government in the United Kingdom and the Government of Ireland.
(3) This section comes into effect only after a Legislative Consent Motion has been approved by the Northern Ireland Assembly.”
New clause 63—Border Impact Assessment—
“(1) The United Kingdom Government must work jointly with and commission, alongside the Government of Ireland and the Northern Ireland administration, an economic impact assessment on the border regions between the Republic of Ireland and Northern Ireland.
(2) This impact assessment must include recommendations on economic support and investment required to aid these regions after the United Kingdom leaves the European Union.”
New clause 64—Role of Devolved Administrations in trade negotiations—
“The Northern Ireland administration, alongside other devolved governments and administrations, must have a formal role in all new trade negotiations conducted by the United Kingdom Government.”
New clause 65—Trade Agreement—
“The Northern Ireland Assembly must give legislative consent for any new trade agreement reached by the United Kingdom Government before new trading rules and standards are enacted.”
New clause 66—Maintaining EU Alignment—
“The United Kingdom Government must provide an annual analysis to the devolved administrations and governments as to what measures they can enact to ensure maximum regulatory alignment with the European Union standards as the EU’s laws are updated and enhanced.”
Joanna Cherry
It is a pleasure to serve under your chairmanship, Sir Roger.
I rise to speak to amendments 38 to 49, which stand in my name and those of some of my colleagues; to amendment 10, which stands in the name of my hon. Friend the Member for Central Ayrshire (Dr Whitford) and some of my other colleagues; and to amendments 28 and 29 and new clause 43, which stand in the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald).
We heard a lot yesterday from those on the Government Benches about the desire of the British people to get on with Brexit, so I would like to begin today by reminding them that the UK at present consists of four constituent parts, and that two out of four of them—Scotland and Northern Ireland—have voted to remain in the EU on every occasion they have been given, including the EU referendum in 2016 and thereafter.
I acknowledge and respect the fact that the Prime Minister and his party won a majority of the seats in England, but I ask those on the Government Benches to pause and consider that the Prime Minister did not win a majority of the seats in Wales, did not win any seats in Northern Ireland—indeed, remain parties won the majority of seats there—and that in Scotland, standing on a manifesto commitment to deliver Brexit and prevent a second independence referendum, the Conservative and Unionist party was reduced to a rump of six MPs, with the Scottish National party winning the election emphatically.
I ask then that this afternoon not be another session of “Scotland get back in your box” but that there is some respectful recognition of the democratic desire of my constituents and the majority of constituents in Scotland to remain in the EU. Rather than lectures about delivering the will of the British people, let us seriously consider that it is the role of the Opposition to scrutinise Bills. I realise that, inevitably, Brexit will now happen—I hope and believe that Scotland will find a way around that for Scotland—but that does not mean there are not legitimate concerns about the way in which the Government are seeking to deliver Brexit.
Geraint Davies (Swansea West) (Lab/Co-op)
Does the hon. and learned Lady further accept that 16.5 million people voted for parties either supporting remain or a public vote on the deal versus 14.5 million who voted for the oven-ready Brexit? There is still a democratic mandate, therefore, for putting the deal to the people?
Joanna Cherry
I have to say that I think the ship has sailed on that, because of the outcome of the election in England, but the ship has not sailed on Scotland’s constitutional future, because, like it or not, the Conservative party was reduced to a rump of representation in Scotland at the general election and my party won 47 of the 59 seats. It is surely a matter of concern in a democracy that is not a unitary state but consists of several nations that no matter how many amendments I and my colleagues table to the Bill, and probably every other Bill in this Session, we are unlikely to achieve a single amendment.
Rather than the braying and jeering that occurred when the leader of my group, my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), got up to ask his questions this afternoon, I suggest to those on the Government Benches that if they really believe in preserving the Union of the United Kingdom they might want to show a little more respect, not necessarily to me or my right hon. Friend, but to those who sent us here to advocate what the majority of people in Scotland want—and, whether those on the Government Benches like it or not, the majority of people in Scotland do not want to leave the European Union but want a second opportunity to look at Scotland’s constitutional future in the light of England’s decision to leave the European Union. I defy any democrat to say that that is not a reasonable position. I gently suggest to those on the Government Benches that jeering at the representatives of voters in Scotland, shouting us down and rubbishing our legitimate concerns is not a sustainable position for the next five years.
Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)
I am a Unionist, but I share the hon. and learned Lady’s view that the voices from the various and diverse parts of the United Kingdom need to be heard. She is right to say that the Government are unlikely to accept any of the amendments that represent legitimate concerns, not least among those of us who represent Northern Ireland. Indeed, all the main parties have come together in an unprecedented way to back many of these amendments. I hope that, post the withdrawal agreement, there will be more consultation and discussion that will include the representatives of the various parts of the United Kingdom.
Joanna Cherry
There is not much on which the right hon. Gentleman and I will agree, but we can agree on this point. There needs to be a recognition, along with the triumphalism of members of the Conservative and Unionist party about their win in England—which I understand, because we feel pretty triumphal about our win in Scotland—that, if theirs really is a Unionist party, they must engage properly with the representatives of the other parts of the United Kingdom.
Before I deal with the amendments in this group, let me raise again with Ministers the points that I made yesterday about the sweeping powers that the Government are taking to themselves in clauses 3, 12, 13, 14, 18, 21 and 27 to table delegated legislation making provision for areas of devolved policy. The Secretary of State tried to rubbish my interventions yesterday, but if he had time to read the independent report of the Scottish Parliament Information Centre overnight he will know that this is not some SNP party political diatribe, and that careful analysis of the Bill makes clear that it is a matter of fact that the Government are taking to themselves the right of British Ministers, acting alone, to produce delegated legislation in relation to devolved areas. That shows that the paragraph about which the SNP has complained on a number of occasions will actually be included.
The Secretary of State tried to deflect me yesterday, first by saying that the power related to reserved matters. That was simply not correct, as it clearly relates to devolved matters. He then suggested that the power that the Government were taking was merely technical. He will, of course, know that the Sewel convention does not apply to delegated legislation, although it probably would not matter if it did, because the Government are now prepared to drive a coach and horses through it. Interestingly, the Government’s delegated powers memorandum to the Bill states that UK Ministers “will not normally” make regulations in relation to devolved areas
“without the agreement of the relevant devolved administration.”
That is what the Sewel convention says, but we know that it has lately been more honoured in the breach than the observance.
Let me ask the Secretary of State again to revisit the remarks that he made yesterday. Will he acknowledge, for the record—and these are matters on which there may be litigation in the future, so the record might be quite important—that the clauses to which I have referred give UK Ministers the power to make delegated legislation in relation to devolved matters? Will he acknowledge, for the record, that that constitutes an incursion into devolved policy that rightly causes concern not just to the Scottish National party but to all who believe in the devolved settlement?
I know that it is history, but 22 years ago 75% of the people of Scotland voted for that devolved settlement. It is worth remembering that the background against which they did so was years and years of Scotland voting Labour but getting a Conservative Government. Now they are seeing years and years of Scotland voting SNP but getting a Conservative Government. I think it reasonable to draw a lesson from that history: there probably will be another constitutional referendum in Scotland soon, because the tension that now exists is similar to the tension that existed in the 1990s. I look forward to hearing from the Secretary of State later today an acknowledgement of the power that is being taken by the British Government.
Overall, I would say that this Bill is about the Executive taking as much power to themselves as possible, not just from the Scottish Parliament and the Welsh Assembly but from this Parliament, with their swingeing use of delegated legislation and, in relation to clause 26, which I will come to in a moment, from the judiciary.
The Conservative and Unionist party’s manifesto revealed that the Government’s aim was to change the balance between Government, Parliament and the courts and, as my hon. Friend the Member for Central Ayrshire (Dr Whitford) said yesterday, we see in this Bill the beginning of the changing of that balance. We also see a continued attack on rights, not just the undermining of EU citizens’ rights, as we heard yesterday, and not just the undermining of workers’ rights, which we will come to later today, but the rights of child refugees.
It is fair to say that it is the proposal in the part of the Bill that we are discussing that has excited the most public comment. I have certainly received many communications from constituents who are worried about this, and in that connection I wish to speak to the amendments tabled in the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East—new clause 43, amendment 28 and amendment 29—and at least to address them at this stage, whether or not they are made, which is perhaps a matter for later.
Across Europe, thousands of unaccompanied children are living in the most desperate circumstances, many of whom are separated from their families. Legal family reunion is a lifeline to those children, who would otherwise risk their lives in dinghies or in the back of lorries to reach a place of safety with their families. We have seen some pretty awful evidence recently of what can happen when refugees resort to dinghies or the backs of lorries.
In 2018, in recognition of that fact, a cross-party coalition in this House, including prominent Members of all parties, including the Conservative and Unionist party, recognised the humanitarian need for family reunion to continue and secured a legal commitment from the then Government to negotiate a replacement for the current rules when we leave the European Union. For the Government now to seek to remove those protections risks causing panic among refugee families currently separated in Europe, with potentially tragic consequences. It is also deeply unacceptable to the constituents of many MPs in this House.
The Government say that they are going to continue with refugee family reunion, so it is not clear to me why they are going to the trouble of taking that commitment out of this Bill, unless they want to hedge their bets a bit. Based on experience, that is what I suspect they are up to. Without this obligation in the Bill, there will be no obligation on the Government to ensure that family reunion continues beyond the very restrictive rules in United Kingdom law.
Tim Loughton (East Worthing and Shoreham) (Con)
I was one of the supporters of the original family reunification amendments. I trust the Government and that this commitment will be stuck to in the appropriate place—an immigration Bill. Does the hon. and learned Lady acknowledge, however, that post-Dublin III there is a potential problem with the full extent of those family members who qualify for family reunification, and that that needs to be sorted out? There is also a problem with the rate at which potential applicants are processed in places such as Greece and Italy, which is not working well, and with the cost of applications. The whole scheme needs to be properly overhauled, and just bunging it into this Bill is not necessarily the best way of getting the best result that we all want.
Joanna Cherry
The answer to that is that the whole scheme is not being bunged into this Bill. The obligation to maintain certain minimum-level requirements is being taken out by the Bill, although it was agreed by cross-party Members, including the hon. Member for East Worthing and Shoreham (Tim Loughton), in the last Parliament.
The UK’s immigration rules as they stand—apart from some very limited circumstances—allow children to reunite only with parents, not with other relatives, in the UK. Under the EU Dublin III regulation, children have a legal route to reunite with other family members such as siblings, grandparents, aunts and uncles, and 95% of children that the charity Safe Passage supports to reunite with family safely and legally would be ineligible under the current UK rules. The consequence of this is that they would be forced to remain alone, separated from their families. There is a legitimate concern that taking out this previous commitment, through the Bill, is the beginning of a move towards an absolutely minimalist approach by the Government to their rights and duties.
Jim Shannon (Strangford) (DUP)
I want to put on record in Hansard that lots of people have contacted me by email about the issue that the hon. and learned Lady is referring to. There are many churches and many individuals in my constituency that want to see what she has asked for enshrined in legislation. I had thought that the Government were committed to doing that, and it is disappointing if they are not. If the Government want to reflect public opinion out in the street and mostly reflect public opinion in the constituency of Strangford and elsewhere, they should listen to the voices of the churches, the community groups and the individuals who want to see this happening. With that in mind, I will support the hon. and learned Lady.
Joanna Cherry
I am grateful to the hon. Gentleman for his comments, with which I entirely agree.
Among the amendments that have been crafted by the SNP, new clause 43 is designed to oblige the Government to negotiate an agreement so that Dublin III as a whole continues as closely as possible to the current arrangements. So far as we can make out, it is different from other Opposition amendments, which focus only on children with family here. Our purpose is to challenge the Government to explain why the broader Dublin III system is not worth saving.
Amendment 28 relates specifically to children. Again, so far as we can see, it is the only Opposition amendment that goes beyond seeking an agreement and requires Ministers to put in place a scheme so that we keep accepting take-charge requests from unaccompanied minors. We in the SNP ask why that should be negotiated away. If we believe that children seeking international protection are best placed with their families, let us allow that to happen in the United Kingdom. If we get an agreement that the arrangement is mutual with the EU, that would be great, but why wait? Are we seriously saying that, in the unlikely event that the European Union decides to play bad cop, global Britain will not take these children?
Kate Green (Stretford and Urmston) (Lab)
I am following carefully the argument that the hon. and learned Lady is making. Does she not agree that the obligation the Government already have, under the Borders, Citizenship and Immigration Act 2009, to protect the best interests of children would be an essential factor in considering exactly the amendments that she is discussing, and that if they are refusing to accept those amendments, they are undermining that legislation and the intention behind it?
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Does the hon. and learned Lady also find it troubling that the Government have chosen to remove the obligations in the European Union (Withdrawal) Act 2018 that everyone had accepted? They had been supported by Government Ministers and by this House as a sensible objective to negotiate an agreement to ensure that some of those vulnerable children could be reunited with their families. It was the most innocuous element of that Act, and it is therefore inexplicable that Government Ministers should suddenly decide that they want to take it away.
Joanna Cherry
I agree. It is inexplicable, unless Government Ministers want to take the advantage of the majority they have secured from the English electorate to renege on an important humanitarian commitment, which, as the hon. Member for Strangford (Jim Shannon) has said, represents the best about what people across these islands hold dear in their Christian faith, their other faiths or their humanitarianism. It is incumbent on the Government to tell us what they are really up to.
Joanna Cherry
I want to make a bit of progress now.
I want to deal briefly with amendment 29, which is similar to ones advanced by other Opposition parties. It simply puts back in the Bill the obligation to negotiate an agreement for unaccompanied children. We see that very much as a fall-back, and we would like the House to go further than that.
I want to move quickly on to deal with my amendment 38 and those that follow it, which relate to the extent to which the Bill resorts to delegated powers in order for the Government to change the law in ways they feel are appropriate—not necessary, but appropriate—in relation to our withdrawal from the European Union. The Bill enables the Government to make potentially huge changes to the law through secondary legislation that cannot possibly enjoy the same level of scrutiny by this Parliament that one might expect in a properly functioning constitutional democracy that is contemplating such significant change as this Parliament seems determined to embark upon.
Alison Thewliss (Glasgow Central) (SNP)
My hon. and learned Friend is making an important point. I sat on many Delegated Legislation Committees in the previous Parliament, and their ability to amend anything is nil. Does she agree that that is a woefully inadequate process, because while there is some degree of scrutiny, there is certainly no ability to change anything?
Joanna Cherry
My hon. Friend is absolutely right. The reality is that if this discretion will be scrutinised only in the courts after individuals have raised concerns about the impact of delegated legislation on their rights, then the breadth of discretion that the judiciary has to determine whether something is appropriate rather than necessary could be quite problematic. Indeed, that was reflected in the previous Parliament by judicial concerns about the breadth of discretion afforded by the word “appropriate.” I tried on numerous occasions in the previous Parliament to get Ministers to explain why they must have “appropriate” rather than “necessary,” but I am not a quitter, so I will try again today, and I will be interested to hear what the Minister has to say.
Moving on to amendment 10, in the name of my hon. Friend the Member for Central Ayrshire, I believe that she will speak about it later or may wish to intervene on me, but I will just deal with it fairly briefly, because it is important. Others will obviously speak about Northern Ireland at length this afternoon, but amendment 10 deals with powers in relation to implementing the Northern Ireland protocol. As my hon. Friend said yesterday, the arrangements in relation to the protocol are pretty sketchy, with almost everything left to the Joint Committee to work out and then to be enacted, again, through delegated powers.
However, a significant difference exists between the restrictions on the powers afforded under proposed new section 8C and those under previous similar sections, such as section 8B(5) of the European Union (Withdrawal) Act 2018, because there is no restriction on the powers, for example, in relation to their ability to impinge on the devolved settlements of Scotland and Wales. Of course, concerns exist about the extent to which business organisations, the food and drink industry and, particularly, inshore fishing, as we heard yesterday, could be impacted upon in Scotland by the Northern Ireland protocol.
Dr Philippa Whitford (Central Ayrshire) (SNP)
This obviously also relates to the Northern Ireland Act 1998 and is of concern, perhaps in this Chamber, in relation to the Human Rights Act 1998. Looking at what proposed new section 8C would replace, the 2018 Act contains limitations that had become relatively standard, so I find it suspicious that they are missing. There is no sunset clause, no restriction on taxes or new offences and, in particular, no protection for the devolved Administrations or the Human Rights Act. That is really worrying, because we are being asked to sign up to something when we have no idea of the long-term ramifications.
Joanna Cherry
As, I think, a Committee of the House of Lords pointed out, it is unusual for restrictions in relation to the Human Rights Act, the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 not to appear in relation to delegated powers, so I am interested in hearing why those restrictions do not appear and in learning how the Government think the implementation of the Northern Irish protocol will impact upon the Scotland Act. Indeed, I am in interested in the impact on the Government of Wales Act and the Human Rights Act, and why the Government want to take delegated powers to interfere with the Human Rights Act and the devolved settlement in Scotland.
Turning quickly to clause 26 and my amendment 49, they relate to the concern expressed by many that the Government are amending section 6 of the European Union (Withdrawal) Act 2018—the original provision being that the Supreme Court for the whole of the UK or, in relation to criminal matters, the High Court of Justiciary were not bound by retained EU case law and could depart from that case law in the same way that those Supreme Courts would depart from their own case law. However, in an almost—I think I am correct in saying—unprecedented use of delegated legislation, in clause 26 the Government intend to take the power to pass regulations specifying additional courts or tribunals that could depart from EU law. That is a most unusual approach, and I am wondering what has prompted it.
I am interested in the justification for clause 26. Is it an act of revenge on the Supreme Court of the United Kingdom and the Supreme Court of Scotland for daring to defy the previous Conservative Government by ruling their unlawful Prorogation out of order, or is there some other rationale? I would be interested to hear what it is, because their lordships were taking a close interest in this clause. Even if I am not able to move the SNP amendment to the clause today, which would revert to the status quo in the previous Act, I am sure it will be moved in the House of Lords, because there is a real concern that the aim here is to impact upon the independence of the judiciary, and that different regulations applying to different courts about the extent to which EU law was overruled or could be applied will interfere with the important principle of legal certainty. In some ways, this is a probing amendment, but it is an amendment which, if not moved in this House, will be moved elsewhere, so it would be interesting to hear from the Government exactly why they consider it necessary to diverge so radically from the previous a course of action upon which they were determined.
Before I conclude, I want to say a few brief things about a number of important amendments tabled by the other parties. The SNP would be inclined to support the official Opposition’s amendment 4 on child refugees if they move it, although we would like to go a bit further than that, as I indicated earlier. We are also keen to support amendments from the official Opposition relating to transparency on the arrangements for Northern Ireland and on general scrutiny and oversight. We also give our wholehearted support to the amendment tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas) and to new clause 17 from our friends in Plaid Cymru.
It is, of course, a great pleasure, particularly for myself and my colleagues in the SNP, to have the company of Irish nationalists once more in this Chamber. While I totally respect and understand Sinn Féin’s historical reasons for abstentionism, it is good that we will again hear the voice of Irish nationalism on the Floor of this House and the voice of a significant part of the community in Northern Ireland. It is good to be reminded that Northern Ireland, like Scotland, voted to remain in the European Union. We will be keen to lend our support to the amendments tabled by the Social Democratic and Labour party.
In conclusion, I am certain that not one single amendment sponsored by the Scottish National party will pass in relation to this Bill, just as not a single amendment sponsored by the Scottish National party passed in relation to the Scotland Bill back in 2015, despite the fact that we had 56 out of the 59 MPs in Scotland and now have 48 out of 59.
It is worth remembering that the devolution settlement, which this Bill will undermine, was predicated on the idea expressed in the claim of right for Scotland, which asserts that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. Of course, on 4 July 2018 the previous Parliament unanimously endorsed that principle in the claim of right. The previous British Parliament accepted that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. That means that this House has itself recognised, explicitly and unanimously, the principle of self-determination for Scotland. I look forward to seeing whether the Government have any proposals to reverse that in this Parliament.
To return to what I said at the opening of my remarks, I say to the Government that the day is coming when the people of Scotland will once again vote on whether Scotland should regain its former status as an independent nation state. The hubris, insouciance and lack of respect for democracy embodied in this Bill will hasten that date and ensure victory for the independence movement.
Several hon. Members rose—
Thangam Debbonaire
The right hon. Gentleman is well aware that the Labour party had leadership hustings last night and that the Front-Bench team were here and fully engaged. I am talking now about the future relationship. Labour Members know, reluctantly or not—for many of us, this will be a sad moment—that on 31 January we will leave the EU. We accept that, but I am now talking about scrutiny of the future relationship. The shamefully misleading impression given by the Government that electing them in December would mean that Brexit would be “done” by the end of January and that we could move on to other matters is a terrible way to treat the people of the United Kingdom, whoever they voted for.
I am sure the Prime Minister and his entire Front-Bench team are fully aware that Brexit does not just get “done” when we leave, as we are going to and as the Opposition have acknowledged, on 31 January. I am certain that newly elected, as well as returning, Conservative Members know perfectly well that all that will happen on 31 January is that we will leave the European Union. They know that none of the agreement on the future relationship, or of the arrangements for sharing information about criminals or trading, or for co-operating on research or on moving life-saving medicines between the UK and the rest of the EU, will be “done”. That will all be still to do. The Government have set a wildly unrealistic expectation, not only that Brexit will just get “done”, but that the many aspects of the future relationship will be “done” by the end of June this year, for the transition to be over by the end of December. In doing that, the Government treat the economy, jobs, lives and welfare of the people of the UK recklessly.
Clause 33 means that the implementation period comes to an end on 31 December, in all circumstances, as Ministers said yesterday. Even if we have not worked out how people who currently work across borders in the EU can continue to do so, Ministers are prohibited by law—they will be by the end of tomorrow—from asking for an extension period. If the agreements on how we share information about terrorists and criminals, or on other important aspects of data sharing, are only days away, we will still not be allowed to ask for an extension, even one that is just for days. Even if the arrangements for the movement of medicines are not complete, there will be no extension. [Interruption.] This is related to this amendment, because we are asking for scrutiny of the process. If the Government are going to insist on this transition period coming to an end no matter what, surely we should have a right to scrutinise the process.
Joanna Cherry
The hon. Lady is making a powerful speech. She should ignore the jeers and concentrate on the forcefulness of the points she is making. Does she agree that the situation she has just described, whereby favourable agreements just a few days away from being negotiated would be given up in favour of this shibboleth of a certain date, is the classic definition of cutting off your nose to spite your face?
Thangam Debbonaire
I do agree with the hon. and learned Lady on that. I say again that that shows why we need this amendment, because it is about the scrutiny of the process. If we are to accept this ridiculous idea that there must be no extension to the transition period, even if it is for just days, at least we should have the right to scrutinise that process, on behalf of the people we were sent here to represent. This is not about whether there is good or bad faith on the part of the EU member states. I am sure that they will, as we all hope, negotiate in good faith, but there are practical implications here about the sheer volume of work to be done to reach agreements on all these vital aspects of our future relationship and secure the parliamentary approval of 27 other countries by the end of this year.
I am saddened, but no longer shocked, that the Government rejected our sensible proposal yesterday, but I hope that today they will consider our sensible proposal on scrutiny. It is not too much to ask that we, the elected representatives of the United Kingdom—of all parties, including the Government party—have the right to hear from our Ministers on the aims and objectives of the negotiations, the progress made and the outcome. It is not too much to ask that we be guaranteed that right, with the opportunity to debate and discuss, rather than having to wait for possible a ministerial statement or being forced to beg for information via an urgent question.
Surely, Government Members can see the wisdom in our proposal. They, too, were elected to represent their constituents, not just to be lobby fodder for their Prime Minister. If they have a business in their constituency on which jobs depend, and the ability to trade relies on the continuation of an agreement between the UK and the EU, do they not want to be able to ask their Government about whether that is included in the negotiating objectives and to be able to find out how that is going? If they have a constituent whose life depends on the movement of a medical device from one EU country to the UK, do they not want to be able to find out whether that is part of the negotiations and how that is going? Surely, they will want to be able to represent their constituents.
Members may not realise that the Law Society has recommended reinstating the scrutiny role. They may have forgotten that the Supreme Court judgment in the 2017 Gina Miller case made it clear that the Government cannot make or withdraw from a treaty that amounts to a major change to UK constitutional arrangements without parliamentary oversight. Or maybe this does not count. I ask all Government Members to consider pushing their Government, and I ask the Minister—I say again that I know him to be an honourable man—to consider restoring the full process of parliamentary scrutiny. I ask them to commit today to doing that. They could choose to adopt the Opposition amendment, or they could achieve it in some other way. I do not mind; I just believe that, as elected representatives, we should be able to represent the people who sent us here on the most important change to our way of life, our jobs, our businesses and our security in our lifetimes.
Mr Walker
I will also come back to the issue raised by my hon. Friend.
As is standard in international agreements, the withdrawal agreement sets out procedures for dealing with disputes concerning compliance with the agreement. Amendment 24 would require parliamentary approval for the payment of any fines or penalties under the withdrawal agreement. The withdrawal agreement is a binding agreement that will place the UK under a legal obligation to make those payments. We have to be clear that we will honour our international legal obligations, and we therefore cannot accept any conditionality on payments.
I turn to amendments 38 and 46 in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). It is essential that the powers in clauses 18 to 22 can be used to enable all appropriate measures required by the withdrawal agreement to be implemented by the end of 2020. Restricting the power in the manner proposed would limit the Government’s ability to implement the withdrawal agreement in the most sensible way. I remind the hon. and learned Lady that the use of “appropriate” in statute is not at all new. There are myriad examples elsewhere on the statute book of powers that use the term “appropriate” to describe the discretion available to Ministers when legislating. I remember well that we discussed the question of “appropriate” versus “necessary” many times during the passage of the European Union (Withdrawal) Act 2018, and Parliament accepted the use of the word “appropriate”. There is no persuasive reason why we should depart from that approach here.
Joanna Cherry
In the Scottish Parliament’s legal continuity Bill—which of course was struck down by the Supreme Court after the Conservative party retrospectively changed the law in the House of Lords—the power that Scottish Ministers afforded themselves for making delegated legislation used the word “necessary” rather than “appropriate”, so it is not the case that all Governments in these islands afford to themselves the sort of sweeping powers that the Minister is planning on affording himself. There are very legitimate concerns about this issue that are shared not just by politicians but by members of the judiciary. What does he have to say in response to the points raised not just by me, but by the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who was the Chair of the Select Committee on Justice in the previous Parliament?
Mr Walker
I obviously pay heed to those points when they are raised, but I am told that the term “appropriate” actually better allows us to take better steps to ensure that multiple options can be explored when the legal changes are complex and interact with numerous pieces of existing legislation; so there are other elements to take into account.
Nick Thomas-Symonds
The hon. Lady is absolutely right to highlight the challenges, which are precisely what I wish to come on to and develop.
Yesterday, I heard the Secretary of State for Exiting the European Union respond to an intervention by my hon. Friend the Member for Rhondda (Chris Bryant); my fear is that as yet the Government’s thinking just has not moved beyond the implementation period, which ends at the end of 2020. What happens after that is so important, because it will determine what our law enforcement agencies have in their armoury to deal with pan-European crime. It is an urgent task.
The issue of data sharing and continued data sharing is crucial. Were the UK ever to lose access to the EU’s security databases, information that today can be retrieved almost instantaneously could take days or weeks to access. That would create a significant hurdle to effective policing, to say the least.
On Europol, how do the Government see the future? Do they envisage full participation, or only observer status at board meetings? We just do not know. The fact that the situation is critical and the position wholly unsatisfactory is the fault of the Government and not of those who work in our security sector. After all, the UK makes a great contribution to European security. Through the Schengen information system—or SIS II as it is known—the UK is contributing to the sharing of real-time data on wanted criminals, missing persons and suspected terrorists, and that co-operation is beneficial to us all. The data shared in that database are used millions of times each year by UK police, and that surely must illustrate to all Members the profound risk of there being no long-term deal on security.
In conducting the negotiation, the Government must emphasise the UK’s contribution and the mutually beneficial nature of European co-operation in dealing with the most serious organised crime on our continent. I listened carefully to the new European Commission President today. She said that the threat of terrorism is real, and that we have to share the necessary information to stop terrorists crossing borders and attacking us. She is right. When we are fighting crime, we are better working to eradicate it collectively than working alone, and we need a formal legal basis to continue to do so. That is why new clause 3 is so important, and I commend it and new clause 2 to the House.
Joanna Cherry
I rise to give the support of the Scottish National party to the official Opposition’s new clause 2 and to speak to new clause 8, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford); new clauses 50 and 51 and new schedule 1 in my name and those of some of my colleagues; and new clauses 45 and 46, in the names of SDLP Members.
I want to turn first to the issue of workers’ rights. What is being done in this Bill is very serious, which is why new clause 51 and new schedule 1 seek to reinstate the missing clause and schedule that were in the October version of this Bill. The Government have suggested that the substance of the deleted clauses will be covered in a separate employment Bill, but, as it has yet to be laid before Parliament, we are understandably suspicious given the history of these matters. It is simply not true or accurate to suggest that the United Kingdom has done a better job than the European Union in protecting workers’ rights. There are some respects in which the United Kingdom has progressed matters, and it is true to say that those came under a Labour Government, and I congratulate Labour on that.
Joanna Cherry
I want to develop my point before I take any interventions from the hon. Gentleman.
There are many other respects in which the European Union and our membership of it have advanced the cause of workers’ rights. Judgments of the European Court of Justice, expanding the law in the way that some hon. Members seem to find so objectionable, have also led to greater protections for workers in the United Kingdom. As well as the disappearance of what was clause 34 in the October Bill, this Bill also removes the provision that pre-Brexit judgments of the European Court of Justice will continue to be binding on UK courts until the UK Supreme Court departs from them. Instead, it has provision for Ministers of this Government to make regulations under clause 26—[Interruption.] I can see the Minister frowning at me, but we spoke about this in some detail earlier today. I am talking about regulations to enable certain courts and tribunals to depart from the CJEU case law. That, of course, underlines the concern that many trade unions feel in relation to this matter.
I have read very carefully what Unison, the TUC and the Scottish TUC say about this matter. I have also seen what has been said by Thompsons Solicitors, a well-known legal firm that many of us have had dealings with in the past, which has worked hard in the area of protection of workers’ rights. The fear is that the combination of the missing clause and the power that the Government are taking to themselves to interfere with the Supreme Court’s ability to overrule previous European Court of Justice decisions will create a chaotic free-for-all on workers’ rights in the United Kingdom, whereby the courts could potentially weaken existing workers’ rights and ignore past ECJ rulings from which trade unionists and workers across the United Kingdom have benefited. If that does not happen in the courts, it could well happen as a result of the unilateral action of Government Ministers through delegated legislation.
Chris Stephens (Glasgow South West) (SNP)
Many of those who advanced the leave cause during the referendum campaign said that one of the reasons they wanted to leave the European Union was to do away with workers’ rights and employment rights. Now that many of those people are on the Treasury Bench, the suspicions held by many of us are only going to intensify.
Joanna Cherry
Not all, but many Members on the Government Benches have spoken about just the sort of free-for-all on rights that we fear. Of course, this partly comes from the conceit that somehow the United Kingdom—by which they normally mean England—has a monopoly on rights, which is not shared by other countries across the world, including the other countries in the European Union. Unfortunately, the lived experience of working men and women across the United Kingdom is not one of confidence in Governments of the UK to protect them, particularly when those Governments are of the Conservative and Unionist party. That is why they have been so reliant on the jurisprudence of the European Court of Justice, and on directives and regulations passed by the European Union institutions, in which Britain has of course had significant input over the years. My new clauses and the Labour party’s seek to achieve some minimum guarantees in relation to the continued enjoyment of many rights that exist only because of the European Union.
Geraint Davies
Does the hon. and learned Lady agree that the European Court of Justice underpins our fundamental values of democracy, human rights and the rule of law? Does she also agree that, outside it, workers’ rights, the judiciary and the rule of law are under attack, and that our civil service, the BBC and all such institutions are now a free-for-all? It is not just workers’ rights; it is the judicial system itself.
Joanna Cherry
As I said earlier, it is clear from the Conservative manifesto that the Government intend a rebalancing of power between the Executive, Parliament and the judiciary. I think this comes from a sense of hubris about the Prime Minister’s defeat in the Supreme Court at the tail end of last year. Of course, it is important to remember that that was not a political decision, but a legal one. The distinguished Scottish judge Lord Drummond Young said in the Scottish Supreme Court, “It is not for the judiciary to scrutinise the Government. That is the job of Parliament. But when the Government prevents Parliament from doing its job, then it is the job of the judiciary to step in to make sure that Parliament can fulfil its function.” I see that that comment from a distinguished member of the Scottish bench is going down like a lead balloon on the Government Benches, but it simply mirrors what Lady Hale was careful to do in the Supreme Court, which was to underline that these were legal judgments, not political ones.
Our memberships of international institutions such as the European Union and the European convention on human rights, separately, have given important guarantees that regardless of the complexion of government in the United Kingdom, there will be certain minimum standards. Withdrawal from the EU undermines that in a number of areas, particularly workers’ rights, and that is why these amendments are so important.
My second point relates to the charter of fundamental rights, which was of course removed by the European Union (Withdrawal) Act 2018 and is not dealt with in this Bill. However, there remains widespread concern about the effect of the removal of the charter because, as we heard at length in the last Parliament, it guarantees certain rights that are not guaranteed by the convention on human rights or by the domestic legal systems of these islands. My SNP colleagues and I believe that this Parliament should ensure that the Bill does not lead to the diminishing of the rights of UK citizens or EU citizens living in the UK. One way of doing that would be for the Government to commit to conducting and publishing an impact assessment on the effect of the removal of the EU charter of fundamental rights later this year. That is what my new clause 50 seeks to achieve. I would respectfully suggest that, in the interests of certainty, no reasonable parliamentarian in this House who cares about the rights of his or her constituents could oppose an inquiry into the impact of the withdrawal of the charter on their constituents’ rights.
New clause 8, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber and a number of other colleagues, sets out a requirement for the UK Government to negotiate a deal keeping the UK close to the single market and the customs union. I have no intention of pressing it, because I know that that ship has sailed. However, it is intended to remind the House of, and to put on record, the position of the Scottish National party and the Scottish Government in relation to membership of the single market and the customs union.
The Minister said earlier that the UK Government have engaged with the devolved Administrations throughout the negotiations to leave the European Union, but I am afraid that the evidence of the past three years shows that while engagement has taken place, it has been very much a superficial box-ticking exercise. That is not just the view of the SNP; I see others who represent seats in areas covered by other devolved Administrations nodding their heads.
In December 2016, the Scottish Government published a document called “Scotland’s Place in Europe”, which was the first comprehensive proposal from any Government in these islands to address the outcome of the EU referendum. It contained an evidence-based analysis showing that the least damaging option for leaving the European Union—the optimum case being to remain—was to continue membership of the single market and customs union. The document demonstrated how that could be done for the UK as a whole, notwithstanding other parts of the United Kingdom such as Northern Ireland and Scotland. The proposals represented a very considerable compromise by the Scottish Government, but despite cross-party support in the Scottish Parliament, they were almost instantly dismissed by the former Prime Minister. Indeed, they were read more carefully by Michel Barnier than by the British Government.
Thereafter, Scottish Government colleagues engaged fully in good faith with the process set up by the UK Government apparently—I use the word “apparently” advisedly—to involve and consult the devolved Administrations in formulating the UK position for withdrawal. The terms of the Joint Ministerial Committee on EU negotiations, which was set up for that very purpose, were agreed in October 2016, saying that through the Committee the Governments would
“work collaboratively to…seek to agree a UK approach to, and objectives for, Article 50 negotiations; and provide oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations”.
Sadly, it was soon clear that the UK Government had no intention of honouring those commitments. There is more to engagement than simply turning up and speaking at people. Engagement involves listening, compromising and collaborating.
Chris Elmore (Ogmore) (Lab)
The hon. and learned Lady is making an important contribution, as she often does. This is not just about the withdrawal process. We cannot even get discussions about what is happening with the shared prosperity fund. It is 19 or 20 months since the consultation should have ended. I understand from Welsh Assembly Members and Welsh Government colleagues that they cannot even get a discussion with the Treasury, the Department for Business, Energy and Industrial Strategy, the Wales Office or the Scottish Office. If we cannot even get what happens to our funding right, there is little hope of genuine consultation with the devolved Administrations on the process of leaving.
Joanna Cherry
That is very much the experience of my Scottish Government colleagues across the board in this engagement with the British Government. In fact, in a recent keynote speech to the Institute for Government, my friend and colleague Mike Russell, the Cabinet Secretary for the constitution in the Scottish Government, said that
“at no point have the views of the Scottish Government, the Welsh Government or Northern Irish representatives been addressed”
in a way that has led them to believe that they have been listened to and would be taken account of in any meaningful way. Still less has there been any recognition of any need to accommodate the pro-EU majority in Scotland and in Northern Ireland, or of the position of Scottish MPs or, indeed, the Scottish Parliament, which normally votes by more than two thirds to one third on substantive Brexit issues. Indeed, just this afternoon as we have been debating here, the Scottish Parliament has voted by 92 votes to 29 to withhold legislative consent to this Bill. I am afraid that the Government cannot just blame the bête noire of the Scottish National party for that. It has involved all parties in the House—the Lib Dems, Labour and the Greens, but not the Scottish Conservatives, who are not interested in what the majority of people living in Scotland want. They are more interested in doing the bidding of their Westminster-based masters.
The point is this: there has been no meaningful engagement with the Scottish Government. There has been no meaningful engagement with the Welsh Government. As we heard even from the DUP, which has a genuine right to be annoyed about recent developments, there has been no meaningful engagement with Northern Irish representatives.
While we hear a lot of rhetoric again and again today about how the British people have spoken, the will of the people and a suggestion that the Opposition are somehow an affront to democracy for turning up and scrutinising this Bill, it is important to remember that, far from being an affront to democracy, my hon. Friends and I speak for majority opinion in Scotland—the majority opinion in Scotland is to remain in the European Union. Every electoral opportunity that has been afforded to Scotland since the EU referendum, including the last general election, has resulted in a resounding majority of seats for parties that support remaining in the European Union. So can we tone down a wee bit the rhetoric about the will of the British people and acknowledge the reality of the degree to which engagement has taken place?
Members need not just take my word for it or that of my colleagues in the SNP Scottish Government. The Public Administration and Constitutional Affairs Committee of the Commons concluded in July 2018:
“It is clear from the evidence to this inquiry that Whitehall still operates extensively on the basis of a structure and culture which take little account of the realities of devolution in the UK. This is inimical to the principles of devolution and good governance in UK.”
That was the conclusion of a cross-party Committee of this House. I do not expect any support from Government Members for the SNP’s new clause 8, but it gives me the opportunity to correct some factual misunderstandings about the degree of engagement that has taken place over the last few years.
Before I conclude, I would like to express my support for new clauses 45 and 46, tabled by my colleagues in the Social Democratic and Labour party. New clause 45 would require each devolved legislature to give legislative consent to any trade deal affecting the NHS. It is very similar to the SNP’s new clause 68, which was not selected for debate. The SNP manifesto in Scotland contained a commitment to protect the NHS from a trade deal with the United States of America. We won the election in Scotland with 45% of the vote and 80% of the seats, and it would perhaps be a courtesy to take on board an amendment that reflects the will of the majority of people who bothered to vote in Scotland.
Stephen Doughty
I am sure the hon. and learned Member would acknowledge that a similar pledge has also been made by the Welsh Health Minister, and my constituency colleague, Vaughan Gething. Welsh Labour’s commitment on this, and I am sure that of Plaid Cymru and others, is absolutely clear: we will defend the NHS in Wales in trade negotiations.
Joanna Cherry
I am very grateful to the hon. Gentleman for reminding me of the position in Wales. That of course reflects the fact that, again, this is a concern not just of nationalist parties, but of the parties that support the devolved settlements but perhaps do not wish to go as far as independence.
The SDLP’s new clause 46 requires regional equality, environmental and economic impact assessments of any proposed future relationship or free trade agreement. Again, that is eminently sensible. It is similar to Plaid Cymru’s new clause 16, which is looking for a UK-wide economic impact assessment. Again, those are matters that I would have thought any MP who cares about the outcome of these negotiations and the future of their constituents’ livelihoods would be well advised to support.
I will conclude by saying that we need to take account in these proceedings of the different positions of the devolved nations. What I say and will continue to say to the Government is that if they continue to act as if there is no difference between the wishes of the electorate in England and the wishes of the electorate in Scotland, Northern Ireland and Wales, they will do so at their peril, and the Union that they say they care about so much will be further undermined by that behaviour.
Layla Moran (Oxford West and Abingdon) (LD)
I rise to support new clauses 10 and 29, on which we will be seeking a vote today. These should absolutely be no-brainers.
New clause 10 is about the Erasmus programme. For students, young people, those in training and staff who work in the education sector, the Erasmus scheme has been absolutely incredible. I wonder how many of us on these Benches have used that programme ourselves, or have had our children or others in our family do so. From 2014 to the end of this year alone, €1 billion has been allocated to support the UK as part of Erasmus+. New clause 10 would only require the Government to seek—to do what they say they want to do, but let us be sure—to negotiate continuing full membership of the future Erasmus education and youth programme.
We could secure access to the programme through negotiations, but we would be an associated third country and that would never be as good as the programme we are part of now. However, at least with new clause 10 this Parliament would be instructing the Government that, as part of the next phase, that is something we absolutely want.
Let us remind ourselves what Erasmus does. It allows our young people to go abroad to European universities, to learn new languages, to meet new people, to put down some roots abroad and to build the international understanding that, in my view, is a big part of what it means to be British.
Northern Ireland (Executive Formation) Bill
Joanna Cherry ExcerptsTuesday 9th July 2019
(5 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 9 July 2019 - (9 Jul 2019)
Conor McGinn
I think the hon. Gentleman is posing a question for his own party and other participants in the talks, because to my mind the idea that this measure would lead to a failure of those parties to restore the Stormont institutions and get on with doing the business of Government on everything, including health and education, is quite far-fetched. It should act as an incentive for the parties to come to an agreement and have the institutions restored.
When the hon. Gentleman talks about one particular party, I think he refers to Sinn Féin. It has been very clear with me that it wants to see this decision made at Stormont, not Westminster. I have had discussions through the Love Equality campaign—the broad-based campaign for equal marriage—but also directly with all the political parties in Northern Ireland, including members of the hon. Gentleman’s own party, about the new clause. I understand the hon. Gentleman and his colleagues’ strongly, firmly and sincerely held views, both on the substantive issue that we are discussing and on the interpretation of its impact on the devolved settlement. I hope, however, he will accept that I, in crafting the new clause in this way, have tried as far as possible, in absolutely and unapologetically trying to make this happen and have same-sex marriage extended to Northern Ireland, to give the time and space for the political parties and the two Governments to restore the institutions. I have also respected the devolved settlement by emphatically saying that the power remains with Stormont.
Joanna Cherry (Edinburgh South West) (SNP)
We are very proud of the introduction of equal marriage in Scotland under an SNP Government, led by the former First Minister, Alex Salmond. I am happy to hear the hon. Gentleman making it clear that he respects the devolved settlement. It is much easier for many of us in the SNP to support this excellent measure in the knowledge that he is proposing it given the fact that there is no Assembly at the moment, but it still respects the devolved settlement.
Supreme Court Ruling: Abortion in Northern Ireland
Joanna Cherry Excerpts(6 years, 6 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Karen Bradley
There are many views that we all need to consider in the judgment. As I have said, we will spend a significant amount of time looking at the judgment and considering the points that have been made, but I do come back to the point that this matter needs to be dealt with by the politicians who have been elected by the people of Northern Ireland.
Joanna Cherry (Edinburgh South West) (SNP)
Does the Minister agree that while there has been no declaration of incompatibility on a technicality, and although there is a lot to digest, what is crystal clear is that a majority of the UK Supreme Court has said that, in three crucial respects, the law of Northern Ireland violates women’s article 8 rights. Does she agree that something needs to be done about that as a matter of urgency?
Karen Bradley
Clearly there is much that needs to be done, but it needs to be done in Stormont. That is why locally elected politicians need to come back together to form that devolved Government.
Offences Against the Person Act 1861
Joanna Cherry Excerpts(6 years, 6 months ago)
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Mrs Miller
I thank the hon. Lady for her intervention. I will come to that issue in the short time that I have left.
I commend the hon. Member for Walthamstow for bringing this issue before us today, but the House must understand—and she made this clearer today than during her intervention yesterday—that repealing sections 58 and 59 of the Offences Against the Person Act 1861 would have profound impacts for the whole United Kingdom. I am not saying that those changes could not be strongly argued for, but I believe that today’s debate is about the situation facing women in Northern Ireland. We need to make sure that we are focusing on that in particular, because although decriminalisation is an option—the hon. Lady is right—it is not the only option for improving the situation for women in Northern Ireland. I want to draw on three particular issues.
First, is there a disconnect between public opinion and the policies being pursued in Northern Ireland? What progress has been made on the ground and what action, if any, can the Government take to make sure that, if progress is lacking, things can be done to rectify that? When I read the research—I also read the consultation, which was extensive and thorough—I thought that a strong argument could be made for a call for change to be inherent in the community in Northern Ireland. I do not represent that community; as I look at Northern Ireland Members, I hope that in their contributions they will explain why there is an apparent difference between the public opinion being offered to us and the approach being taken to date by the devolved Administration. I deliberately tread carefully and respectfully on this matter. I truly believe that we should not start any changes here that would make people feel disfranchised as part of this process.
Secondly, we have to recognise that a great deal of progress has already been made; there has not been much detail about that so far in this debate. There was the consultation in 2014 and the report in 2015 mentioned
“a pressing need”
for
“change to the criminal law…to provide for lawful termination of pregnancy…in…clearly defined circumstances”.
That has already been called for. In 2016, legislation was introduced by the then Minister for Justice to bring about some of those changes. In 2018, just last month, a report from a working group on fatal foetal abnormalities again recommended that change should come in.
Change is called for. What can we do today to try to make sure that the absence of an Executive and an Assembly does not stand in the way? There are clearly opportunities with the case that is going through the Supreme Court, and I hope that the Minister is able to share with us more about the Government’s feelings on that. Perhaps the Minister can also talk about the action that can be taken in the absence of an Executive, to continue the deliberations and the important detailed work needed in this place.
Mrs Miller
I will not, if the hon. and learned Lady will forgive me.
I simply do not believe that no action will be taken when the Northern Ireland Assembly is formed again, but if none is, what can the Government do to ensure that there are no potential breaches of international conventions such as the ones I have already talked about?
This place legislated to devolve powers on abortion to Northern Ireland. We cannot ride roughshod over that, and we have a responsibility to uphold the law. Equally, the lack of a functioning Assembly hampers progress. Westminster has a right to disagree with the Assembly and the actions that it has taken, and this debate should be a vigorous exploration of all those arguments. But we have clear international responsibilities to outlaw discrimination against women. We need to make sure that we, as Westminster parliamentarians, are doing for that for women in the four corners of the United Kingdom.
Karen Bradley
The House determined that we should provide support for women to travel to Great Britain to receive abortions. Personally, I want to see reform in Northern Ireland, but it is a matter for the people of Northern Ireland.
Karen Bradley
I am going to make progress, but I will hear the voice of Scotland.
Joanna Cherry
This is not a Scottish-specific point, but a point about the Supreme Court, which is due to rule on Thursday. My understanding is that if it rules that the situation in Northern Ireland is incompatible with the European convention on human rights, it will be the responsibility of the UK Government to act under section 26 of the Northern Ireland Act 1998 because it is the UK Government who have the responsibility for fulfilling international treaty obligations. Is my understanding correct?
Karen Bradley
I apologise. I realise the right hon. Lady is not the only voice of Scotland—we will hear many others today. I will not prejudge the Supreme Court decision. We will receive the judgment on Thursday, we believe, and when we have it, we will consider it carefully.
I will return to the question of Northern Ireland. This is a matter of conscience. A free vote will be afforded if the matter of abortion comes before the House again, and the same applies in Northern Ireland. That is why this Government, like their predecessors, believe that the best forum in which to debate and resolve these and many other matters is the locally elected Northern Ireland Assembly. The Government’s priority therefore remains to urgently re-establish strong and inclusive devolved government at the earliest opportunity. As Secretary of State for Northern Ireland, I want to ensure that any future reform is handled with due care and consideration, with locally elected and locally accountable politicians having the opportunity to consider and debate the issues, and the people of Northern Ireland being able to contribute to the debate on the devolved issues that affect their lives.
Northern Ireland
Joanna Cherry Excerpts(6 years, 10 months ago)
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Joanna Cherry (Edinburgh South West) (SNP)
As has been said, in the past 48 hours, a couple of Members of this House and a British MEP have attacked the Good Friday agreement as “failed” and “unsustainable”. Will the Secretary of State join the Tanaiste, Ireland’s Deputy Prime Minister, in condemning such language as “irresponsible”?
Karen Bradley
As I say, I can only set out the Government’s position, which is that we fully support the Belfast agreement.