Northern Ireland Protocol Bill

Julian Smith Excerpts

2nd reading
Monday 27th June 2022 Commons Chamber

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

It is a pleasure to speak after the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson).

Powerful and legitimate arguments are being made about the legal basis of this Bill, and I am sympathetic to them. Whatever the motivations and goals behind the Bill and whatever the reasons why we are at this point, it is important to look at what is practical and most likely to succeed regarding the Northern Ireland protocol and what will ensure that we show the people of Northern Ireland we are handling this issue with balance and an even hand. There are real and significant issues, as we have just heard, with the protocol—customs checks east-west and regulatory challenges to name but two. While I do not accept that the protocol is a constitutional threat to the UK, it is clear that it creates many complex challenges.

I acknowledge those issues, but there is significant support for the Northern Ireland protocol. Business organisations across Northern Ireland have been engaging in good faith with Government for over two years and looking at myriad ways to improve the deal. Their view is that the needed stability and balance can be achieved only through a negotiated settlement, and they want to preserve the opportunities of the protocol. They also want to protect the strong position of the Northern Ireland economy, which has now been shown in multiple reports to be performing among the best in the country.

There are major concerns that the advantages as well as the disadvantages of the protocol could be lost with this Bill, and that the Henry VIII clauses are there to remove almost all of the protocol should Ministers want to do so. A majority of MLAs also articulated this view in a recent letter to the Government. They accepted that changes need to be made, but they are clear that they want a negotiated approach. Voters across Northern Ireland, many of whom support the need for change, also want a UK-EU negotiated solution: 74% of voters support that.

I fear that this Bill is a kind of displacement activity from the core task of doing whatever we can to negotiate a better protocol deal for Northern Ireland. I also fear that it risks creating an impression to Unionism that a black-and-white solution is available when the reality is that, once this Bill has been dragged through the Lords and the courts and after EU responses and reprisals, compromise will ultimately be needed. Our sole focus should be on how we shift the EU into a negotiation to get the changes needed for Northern Ireland and from the right hon. Member’s party.

We risk toxifying further the discussions we are having with the EU and member states, and we risk prolonging instability for Northern Ireland business, not to mention putting the whole of the UK at risk of trade and tariff reprisals. We also risk further entrenching the view of many middle-ground voters in Northern Ireland that the desire to finish Brexit by removing the protocol is against their best interests. This issue of winning hearts and minds is important to bear in mind as we seek to persuade and cajole people to stick with the Union.

We should be looking at how we persuade the EU to make the changes needed by Unionism. We should be looking at how we encourage the Northern Ireland parties to work together on joint priorities and the EU to understand that it is in its interests to provide much greater political focus on this issue. What else can we do in other parts of the UK-EU relationship to encourage the bloc to shift? Our challenge is to push the EU to move beyond the flexibilities it is proposing and to change the text, but we also need to be realistic about how changes will be made. It will be by more suspensions, more grace periods and turning the eye, and compromises seem more likely than wholesale rewriting. Northern Ireland is very used to these types of deals—shades of grey rather than black and white.

We know that patient, quiet work can deliver. We have already seen this happen on medicines. The EU has now changed the protocol, and the Government have secured uninterrupted supplies to Northern Ireland. Not only that, but Northern Ireland’s crucial pharma sector has access to both markets. There is no reason why the medicines deal cannot be replicated across agrifood and customs if the political will is there on both sides. However, to do that we need the highest-level focus, leader to leader, with a political negotiation focused on Northern Ireland and challenging the approach the EU took over the May years.

The announcement yesterday on more joint working with France in other areas could lead to a space in which we can push forward with a crucial member state the changes needed on Northern Ireland, but it is worth bearing in mind that, from the readout of the Macron-Johnson meeting, the Northern Ireland protocol was not raised yesterday.

We also need to work out how to encourage Dublin. We need its help to get the EU to shift. Ireland should have done more to help when we needed an exit mechanism on the backstop, but we now need to get Dublin, and also the parties in Northern Ireland, to focus on a resolution. We need a new, intensive UK, Northern Ireland, Irish and EU process. That is how we will get the east-west checks resolved so there is no border down the Irish sea. That is how we will fudge issues on regulation. That is even how we might get to fix legal oversight. But we need a sustainable solution.

The task in Northern Ireland is, as ever, to secure broad consensus and that means that Government, as well as addressing the concerns of Unionism, also have to reflect on the concerns of all communities and the growing centre ground. A new intensive Northern Ireland focus in the negotiation process is the only way to ensure that this fragile but high-performing part of our country is handled with the utmost care, balance and respect.

[Several hon. Members rose—]

Northern Ireland Protocol Bill

Julian Smith Excerpts

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Michael Ellis]

My right hon. Friend is conflating two issues. I will come to necessity in due course.

My hon. Friend the Member for Bromley and Chislehurst also mentioned article 16, and the reality is that it does not solve the problem at hand. It would only treat the symptoms without fixing the root cause of the problems. We need a comprehensive and durable solution to this urgent problem and certainty for the businesses and people of Northern Ireland.

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

On durable solutions, does my right hon. Friend agree that the only durable solution is for the EU to listen to what my right hon. Friend the Member for Lagan Valley (Sir Jeffrey M. Donaldson) articulated about the needs of Unionism and for a British Prime Minister, in place from September, not to go moaning to their counterparts, as has happened over the past two years, but to grip the issue and solve it politically?

[Michael Ellis]

Of course, it takes two sides to discuss such matters and come to a solution. I think it has been accepted by all who have spoken so far that there has been some intransigence on the European Union’s side. That is the clear reality. For example, there have been more than 300 hours of discussions between the parties, over 26 meetings involving my right hon. Friend the Foreign Secretary or her predecessor Lord Frost, and 17 non-papers. I am not sure how much more could be done in terms of negotiation; it does need two sides.

I will move on, as I have several amendments to address and I do not want to interfere with Members’ right to speak in due course.

On amendment 26 and new clause 8, tabled by the hon. Member for Oxford West and Abingdon (Layla Moran), she is right to raise the important issue of this Bill’s relationship with the UK’s international legal obligations. However, the amendment is not necessary. The Government have already published a statement setting out their legal position that the Bill is consistent with the UK’s international obligations. In line with the practice of successive Governments over several years, it summarises our position but does not set out the full detail of our legal advice. That is not something that any Government of any shade can do, and it is quite rare to give such a memorandum.

The statement makes it clear that the strain that the arrangements under the protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, means there is no other way of safeguarding the essential interests at stake other than the Bill we propose. There is clear evidence of a state of necessity to which the Government must respond. As in other areas, it would not be prudent for the Government to publish evidence or analysis underpinning every point of legal detail—the lawyers in this House will know that that would be extremely inappropriate—particularly in advance of specific cases arising in potential future litigation. I therefore urge the hon. Lady not to move her amendment.

--- Later in debate ---

[Michael Ellis]

I am not giving way, as I have indicated. I will give way in due course.

It has long been the position that the Northern Ireland protocol and negotiations regarding it are, like any other treaty, a matter for the Government, operating under the foreign affairs prerogative. The Executive must retain that prerogative for very good reasons. Because of the protocol, there is anyway no Northern Ireland Assembly currently sitting to provide the consent that this amendment would require. This Bill aims specifically to restore stability in Northern Ireland and a working Assembly—that is the very essence of it—so there is an essential flaw in the amendment’s logic in requiring the Assembly to approve the operation of the Bill. That is why I ask the hon. Member for Foyle (Colum Eastwood) not to press the amendment. Of course, the Government will continue to update Parliament and the Northern Ireland Executive, when they return, on the status of talks with the EU regarding the protocol, and to consult stakeholders in Northern Ireland on the operation of the Bill.

[Julian Smith]

Will the Minister give way?

[Michael Ellis]

I am very conscious of the time and the number of amendments I have to get through, but I will give way again.

[Julian Smith]

Just on a point of clarification for the Committee, if the Northern Ireland Assembly is not up and running, the provisions in the Bill state that when the consent vote comes, the Assembly will be recalled and there will be a vote on that consent. I say that just so there is no lack of clarity for the Committee about the current provisions within the consent mechanism.

[Michael Ellis]

I thank my right hon. Friend for making that point.

With your permission, Dame Eleanor, I will speak to amendment 25 and new clause 7 together, which are in the name of the hon. Member for North Down (Stephen Farry). The Bill is designed, as I have said, to bring swift solutions to the issues that the protocol has created in Northern Ireland. These solutions are underpinned by the designation of elements of the protocol as “excluded provision”. Put simply, it is by excluding some elements of the protocol and withdrawal agreement in domestic law that the Bill is able to introduce, with the necessary certainty, the changes that are needed in Northern Ireland. By requiring the prior approval of the Northern Ireland Assembly, the amendments would undermine the ability to exclude elements of the protocol, and therefore undermine the entire operation of the Bill. That is unworkable. Because of the protocol, no Northern Ireland Assembly is currently sitting to pass the approving resolution that the amendment would require. The Bill as introduced aims specifically to restore stability in Northern Ireland, and a working Executive and Assembly. Therefore, in requiring the Assembly to approve the operation of the Bill, there is an essential flaw in the logic of the amendment.

As the hon. Member for North Down will be aware, the Sewel convention applies to this Bill, as it does to all Bills of this Parliament that intersect with devolved competence. I confirm that in the absence of functioning institutions, senior officials in the Foreign Office have already made contact with the head of the Northern Ireland civil service regarding legislative consent, and we hope to reach a positive solution as soon as the institutions are restored. By contrast, the amendment would allow the Northern Ireland Assembly to constrain the UK Parliament’s power to legislate, even if that legislation related to a reserved matter. That, of course, is wholly inappropriate under devolution arrangements. The Government will consult stakeholders in Northern Ireland, including Members of the Assembly, on the operation of the Bill during its passage and thereafter. I therefore ask the hon. Gentleman to withdraw his amendment.