UK Exit from the European Union

Mark Durkan Excerpts

Monday 17th October 2016 Westminster Hall

[Paul Scully]

What I really look forward to is being able to take control and make the Government accountable, so that we can look our electorate in the eye and say, “You know what? If you don’t like what we’re doing—if you don’t like the legislation we are pushing through—we are not going to sit there and blame Brussels, or any number of presidents who sit in Brussels and Strasbourg. It is our responsibility; we are accountable to you.” That is what I most look forward to: taking control.

[Mark Durkan (Foyle) (SDLP)]

Will the hon. Gentleman give way?

[Paul Scully]

No. I have taken a good few interventions, and I know others want to speak.

My view on Brexit is not insular—quite the opposite. I am really excited about the prospect of a bright future in which we lift our head up to the world, trade with every continent, including Europe, and grab the opportunities that follow. Let us be patient, get it right and show the world how democratic accountability, global free trade and a fair, controlled immigration system are not mutually exclusive. Let us all follow the path set for us by the British people, and debate and discuss our independent future in a civilised and positive manner. Instead of being a semi-detached tenant of the European Union, carping from the sidelines—out of the eurozone, out of Schengen and out of the social chapter—let us work on being friendly neighbours, working for our common economic good, while remembering that there is a whole world beyond the political construct of the European Union.

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[Mark Durkan (Foyle) (SDLP)]

It is a pleasure to serve under your chairmanship, Mr Wilson. I congratulate the hon. Member for Sutton and Cheam (Paul Scully) on introducing this debate in which we have this six-pack of petitions of very different strengths and flavours, which, as other hon. Members have said, reflect the range of views, concerns, doubts, hopes and frustrations out there since the referendum vote. Other hon. Members have touched on questions raised in relation to Scotland and were kind enough to touch upon the fact that Northern Ireland also voted to remain. I want to address some of the questions raised in respect of the Northern Ireland position and the implications for the Good Friday agreement. Too often too many people here assume that the issues of Northern Ireland are taken care of with assurances of consultation with the joint First Ministers and pledges that people will do everything to avoid a hard border. There are more serious implications for the Good Friday agreement than just the possible profile of the border in future.

[Margaret Ferrier]

In an article penned by the Irish Minister for Foreign Affairs and Trade in yesterday’s Observer, he gave an undertaking that the Irish Government will work for special arrangements that take account of Northern Ireland’s unique circumstances. Does the hon. Gentleman agree that, given the delicacy of the peace process, the UK Government should take the same approach in giving a guarantee that the interests of Ireland, north and south, will be treated with the utmost importance? Does he agree that the exclusion of the Secretary of State for Northern Ireland from the Cabinet Office Brexit Committee is a disappointing signal that that will not be the case in reality?

[Mark Durkan]

I thank the hon. Lady for raising those issues. She is right to reflect on the fact that Charlie Flanagan, the Minister for Foreign Affairs and Trade, and the Taoiseach have reflected that they want to make sure that Northern Ireland’s very distinctive position is recognised and reflected in the future. Not only those in government, but all the parties in the Oireachtas have reflected that in the work of the Joint Committee on the Implementation of the Good Friday Agreement—a Committee that Northern Ireland MPs have the right to attend and speak at. It has set out a programme of work in relation to Brexit to look at the trade implications that might arise, and at the dangers of the incipient borderism that may emerge once we have one jurisdiction in the EU and one jurisdiction out. Once we have differential legislation coming in, we will have the tensions and difficulties of borderism. Whether customs posts are introduced or not, borderism will be an increasing problem. The problem will not only be in border areas and constituencies such as mine and that of my hon. Friend the Member for South Down (Ms Ritchie), but across the north. Indeed, it will affect the south as well.

Before I touch on those particular questions, I want to address questions that are reflected in the petitions, not least the question of the role of Parliament. It seems strange that people who led a campaign in the name of taking back control to the UK Parliament now want to bypass that Parliament as far as considering next steps are concerned. It is clear that the people who are meant to be steering us forward have no plan, map, app or satnav for where they are going. The rest of us are being told that as far as the devolved institutions are concerned, we just have to tailgate wherever London’s impulses take them next—whatever whims, prejudices and fancies emerge, so long as there is some sort of consultation, we can safely tailgate London—but if people do not know where they are going, it is not sensible to follow them blindly. People in Scotland and Northern Ireland who voted to remain have the right to say that our position should be reflected. Members of Parliament from Scotland and Northern Ireland at least should have the opportunity to record their position here and in Scotland. The Conservative party imposed the new construct of English votes for English laws in this Parliament, but perhaps the compromise should have been English votes for English exits. We should let them decide to take themselves out of the EU and let those of us who want to remain retain membership of the single market and have access to EU measures and programmes.

People seem to forget that we had a referendum to endorse the Good Friday agreement. It was almost unique internationally, because it was a double referendum: it had to be held not just in Northern Ireland but in the south, and a majority was needed in both. It was John Hume’s great idea. It was a way of recruiting and respecting both senses and sources of legitimacy in Northern Ireland—the Unionist sense and source of legitimacy, which was bound up in the wishes of the majority of people in Northern Ireland, and the nationalist sense of source of legitimacy, which was bound up in the wishes of the majority of people in Ireland.

In that referendum, huge numbers of people overwhelmingly endorsed the Good Friday agreement. It was the high water mark of Irish national democratic expression—a form of articulated self-determination. It is part of the very delicate constitutional understandings that are at the heart of the Good Friday agreement, whereby we brought people to accept the principle of consent. Some Unionists used to resent the principle of consent because they thought it put Northern Ireland on the window ledge of the Union. Many republicans, of course, rejected the principle of consent because they said it created a Unionist veto and was partitionist. The Social Democratic and Labour party—a constitutional nationalist party that was the first nationalist party to put the principle of consent at the heart of our constitution—worked hard to consolidate the idea, and we got a span of acceptance around the principle of consent.

The principle of consent states that Northern Ireland’s future will be determined by the wishes of the majority of people in Northern Ireland, so it is confounded by the way in which Northern Ireland is being taken out of the European Union against the wishes of the majority of people there. The dual referendum is being confounded, too, because when people in the north and the south voted for the Good Friday agreement, they took Irish and UK common membership of the EU as a given.

The preamble of the agreement between the two Governments in the Good Friday agreement clearly makes significant reference to common membership of the European Union. Strand 1 of the Good Friday agreement, which deals with the institutions in Northern Ireland, refers to the European Union. Strand 2, which is about institutions for north and south—for the island as a whole—refers to the European Union. Strand 3, which is about relations throughout the islands of Britain and Northern Ireland, and takes in all the devolved Administrations plus the Ireland Administration, also refers to the European Union. So people cannot say that the European Union was not a conscious factor in people’s understanding when they voted for the Good Friday agreement.

The improvement in British-Irish relations, in the context of our common membership of the EU, was a major part of the backdrop to the Good Friday agreement. Without the experience of common membership of the EU and the improved relations in that regard, we would never have got the Anglo-Irish agreement in 1985, which was signed by Margaret Thatcher and Garret FitzGerald, and set the context for the subsequent peace process.

People need to be very careful about what they are undoing here. They need to understand the difference between a mere stud wall and a supporting wall. When people talk about blindly taking Northern Ireland out of the EU against our wishes and about removing the Human Rights Act, which was a key pillar in the support for and understanding of the Good Friday agreement, they are dangerously knocking through a supporting wall. I am not saying that there will be a collapse straight away, but if other issues create pressure later we will regret this move. That is why people need to look more fundamentally at some of these issues.

People do not seem to realise, particularly in respect of the workings of strand 2 of the Good Friday agreement, which is about north-south arrangements, that a large part of the traffic and the programme of work of the six implementation bodies that were set up under the agreement relate to EU moneys or programmes. The Special EU Programmes Body, which, as its name implies, manages the EU programmes north and south, would disappear. The work of InterTradeIreland is in large part to do with encouraging businesses north and south to engage with European challenge funds, to understand opportunities in European markets and to understand European directives. It also uses EU money to help businesses and academia to take part in research consortia and alliances. That work would be affected. The food safety body largely deals with EU health and food directives and ensures they are transposed in a consistent and compatible way, north and south. Similarly, Waterways Ireland has channelled EU funding in a lot of its work.

We could end up with Brexit meaning that the workings of strand 2 are, in effect, hollowed out, which is a matter of gross insensitivity—to nationalists in particular, but to all who bought into and supported the agreement as a balanced package, in terms of the institutions in the north, the north-south arrangements and the British-Irish east-west arrangements. It will not be good enough if strand 2 is hollowed out in a way that suits the Democratic Unionist party, the largest party in Northern Ireland currently. It never supported the agreement, it opposed it in the referendum, it voted no and it campaigned against it. It just so happens that it would suit the DUP for Brexit to hollow out that key aspect of the Good Friday agreement by default.

People may say, “Well, that can happen. It’s just a matter of luck and happenstance,” but that is not what the people of Ireland understood when they endorsed the Good Friday agreement in overwhelming numbers, and the people of southern Ireland changed the terms of the Irish constitution specifically to reflect that. We cannot turn around and say, “You’re unilaterally being taken out of the EU. We are unilaterally going to weaken strand 2 by pulling out the underpinnings and all the key bolts, because people in England voted in a UK vote.”

The Good Friday agreement made it very clear that some decisions are for the people of Ireland north and south alone, without external impediment. The way in which the Government are conducting Brexit—they are saying it is a one-size-fits-all, for all parts of the United Kingdom—is potentially going to constitute an external impediment to the due workings and development of the Good Friday agreement in the longer term. People need to recognise that just giving assurances about trying to avoid a hard border will not be enough.

[Geraint Davies]

I am listening very carefully to the hon. Gentleman’s excellent speech. Is he saying, given what has happened, that the Government should undertake to ensure that all the rights that are currently enjoyed—whether rights at work or environmental rights—the economic grants and even the subsidies to counteract the tariffs that will be introduced should now be given to Northern Ireland so we can sustain what the people who signed up to the Good Friday agreement across Ireland understood to be the case?

[Mark Durkan]

I thank my hon. Friend for that point. Yes, essentially I believe that is what the people of Northern Ireland voted for when they voted to remain. They want to maximise our opportunities within the EU, such as our access to programmes and funding. We have had generous access to significant funding from the EU and we have taken advantage of particular programmes, not least some of the cross-border measures. When people voted to remain, I believe they were also voting to preserve the Good Friday agreement. They wanted to try to keep it intact and do the least damage to it. Of course, people who voted against the agreement in the first place had no care about that. They do not care what damage is done to it; they just feel, “Well, somebody else will have to look after it,” and maybe literally pick up the pieces.

The other issues that the hon. Gentleman touched on go back to some of the points made by the hon. Member for Sutton and Cheam and others about the whole question of the great repeal Bill. Last week I described it as the great “download and save” Bill, because it will simply download and save existing EU law, but the significant question then is, who will subsequently control the delete key? Will the great repeal Bill make it clear that only Parliament may repeal or amend those key EU laws, or will powers be given to Ministers to make significant change to that legislation by regulation?

[Mr Charles Walker in the Chair]

That is a significant issue, because a number of Ministers would be happy to joyride around some of those laws, once they had said, “Oh, we’re behind the wheel,” and away they would go. Perhaps, as indicated last week, it would be a bit more like clowns with chainsaws or axes, as they go after particular environmental standards, employment rights, women’s rights or other things, just so they can demonstrate the powers under the great repeal Bill. I worry about what some people might do, in an excess of showing control, and the sort of joyriding that would take place.

[Royston Smith]

Other hon. Members have talked about what should be repealed given the choice. May I ask the hon. Gentleman about his thoughts on when we tried to repeal the unwanted, unfair and sexist VAT on women’s sanitary products? We could not do that through Parliament, but we would be able to do so if we had control in our Parliament. Is that one of the things he would be happy to repeal?

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[Mark Durkan]

My view on that is clear, and I have been consistent. The hon. Gentleman has given the example of women’s sanitary products, but let us also remember that this Government have often cited EU restrictions against a lot of policy initiatives that many of us would want. EU obligations were quoted in favour of the unfair pension changes for women born in the 1950s, with Ministers and Government MPs insisting, “Oh, it’s because of the EU that we have had to do that, equalising in this sort of way and not adjusting.” It will be interesting to see how many of the Members who used that rationale in the past will say, “Now we are getting control, we can have a different take on the whole question of the pension changes and transitions.” Such excuses have been used in different ways and, similarly, were cited against having VAT concessions for hospitality or tourism, even though about 24 EU member states clearly have such variations in their rates.

The other question that I wanted to ask the Minister about the great repeal Bill is, as well as indicating whether any changes made to EU laws incorporated into domestic law will be under primary legislation or regulation, whether the Bill will automatically devolve powers that should go to devolved institutions, or will it have them retained for a period and subject to subsequent devolution legislation? In the particular context of Northern Ireland, some of us worry that under a so-called great repeal Bill powers would, in essence, be transferred to London, but not devolved before they have been exercised in London, perhaps to change some of the legislation or the standards on rights.

Doing that might be in the interests not only of the Government party in Westminster but, unfortunately, of the largest party in Northern Ireland, the Democratic Unionist party. A change in a law before subsequent devolution to Northern Ireland would mean that those of us who want to change it back might do so only by avoiding a veto from a political party such as the DUP. However, if under a great repeal Bill the functions and powers over legislation in the relevant areas automatically devolve to Northern Ireland, then anyone trying to remove those rights and protections, or to reduce the standards, could do so only with sufficient cross-community support and no veto from anyone else. That is a significant political difference, so again the Government need to be careful about what they are treading on and dealing with in such areas.

A final and fundamental point that I want to make about this in respect of Northern Ireland is to do with the Good Friday agreement and the particular provision at the heart of its delicate constitutional understanding. The agreement is a special political and constitutional hologram—Unionists can hold it up to a certain light and see things according to their principles, and nationalists in Ireland can hold it up to a certain light and see things according to our political ethic and outlook—but the fact is that it provides clearly for the possibility of a referendum on Northern Ireland removing itself from the United Kingdom into a united Ireland. That is provided for not only in the agreement, but in schedule 1 to the Northern Ireland Act 1998, which translated the Good Friday agreement into law.

I want the Minister to address whether those specific provisions will be part of any new UK-EU treaty. Will there be specific provision for a UK that has left the EU to still respect and recognise that the Good Friday agreement provided for Northern Ireland to have the option of moving into a united Ireland? Such a provision needs to be included in any UK-EU treaty, if there is to be one, so that in Northern Ireland we are not hit with the kind of question that was used to vex and confuse people in the debate in Scotland, which is to say: “If you want to go into a united Ireland, you might not be able to go into the EU as well. You will be a new territory going into the EU, and therefore you will have to have new negotiations for Northern Ireland, and they could be very complicated.” People might also say, “A united Ireland will change the member state,” so even the Republic’s terms would be up for renegotiation and need a whole new negotiation.

That sort of scare was clearly used in Scotland, but it is one that we cannot allow any possibility of in future options for Northern Ireland. Some of us worked hard to get those provisions into the Good Friday agreement, and to get sufficient understanding around them. We cannot afford for those delicate understandings to be wounded or lost by the way in which the Government go about Brexit.

Some people have tried to say, “There is a precedent”—the German example is the perfect precedent—“so we don’t need anything in the new treaty.” However, the difference was, first, the weight of political interest in making that happen for Germany at the pace at which it happened and, secondly, the understanding that, because the original European Communities treaties specifically recognised the West German constitution—the basic law—which purported to apply to all of Germany, all that reunification did was to make de facto what, in recognising the basic law, was originally deemed de jure. That was the Germans’ equivalent of the old articles 2 and 3 in the Irish constitution—but the territorial claim of those articles was changed as part of the Good Friday agreement.

As diligent constitutional nationalists, we cannot afford for there to be any dirty work at the crossroads. There were understandings about the direct and straightforward premise of a referendum option for a united Ireland, and about how well it would be accommodated, and we cannot allow that to be confounded in any way by the terms of Brexit. The terms need to be specific, because we are also working in the context of different EU treaties from when German unification happened.

We also need specific provision so that no one in other EU member states will misunderstand that referendum option when it emerges in Ireland. People might say, “We, too, want the principle of regions being able to member-state hop, or to switch from one side of a border to another.” It needs to be clear that we are looking not for any wider or more general precedent for anyone else in or around the EU, but for specific recognition of the Good Friday agreement.

[Geraint Davies]

I am listening carefully, but is the hon. Gentleman putting the case that there should be a referendum now across Ireland about whether there should be a unification of Ireland, in order that the people of Northern Ireland who want to remain in the EU can do so as part of Ireland? He probably has not considered this, but will he consider extending that to Scotland—and indeed Wales, while he is at it—so they can join a unified Ireland?

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[Mr Charles Walker (in the Chair)]

Order. I would not want the hon. Member for Foyle (Mark Durkan) to expand too widely on referendums about Irish reunification.

[Mark Durkan]

I am not advocating such a referendum in the short term. We have to deal with the challenges and issues of Brexit and reflect what people in Northern Ireland and Scotland voted for, just as other hon. Members want to emphasise what people in England and Wales voted for. I want us to do that in a way that takes care of the premises and promises that people signed up for and committed to in that great democratic compromise that was the Good Friday agreement. We want the specific provisions that I have mentioned to be in any new UK-EU treaty, and that will be a test of whether the Government properly stand by the Good Friday agreement. We need to be able to say to people that the option for a referendum is still there—that it is no lesser and will be no lesser than was intended when people committed to it in the Good Friday agreement. That is why the terms of any new UK-EU treaty have specifically to take care of that.

I am certainly not trying to say that something in Ireland or Northern Ireland should automatically be bolted on to Scotland. Scotland will clearly advocate, consider and deliberate about its own choices and issues in all these matters. I am not calling for a referendum in the short term—that would not answer a lot of the short-term issues and challenges—but I certainly want to ensure that nothing that is done now weakens that option in the longer term. If certain changes happen, we will not be able to pretend that the tyre is merely flat at the bottom. If we lose on some key points now, serious longer term damage will be done, and that will have delicate political consequences. I hope the Minister will do more than just recite the usual mantras about consulting Ministers in devolved Administrations and hard borders.