Northern Ireland Protocol Bill

Nigel Evans Excerpts

Committee stage
Wednesday 20th July 2022 Commons Chamber

It is worth stressing time and again that a majority of the MLAs and of the voters in Northern Ireland are at least pragmatic around the protocol, and that applies to the vast majority of businesses. Of course people recognise that there must be some degree of modification to the protocol to address the genuine concerns, but I have deep reservations if the Government twist that type of situation to say that there is justification for the Bill. We see opinion polls saying that 68% or 70% of people want to see the protocol modified or read that virtually all political parties recognise that there are changes, but that is a million miles away from any notion of majority support in Northern Ireland for this legislation. I fear that Parliament is proceeding on a false pretence to pass very dangerous and destructive legislation.

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

I am now going to call Jim Shannon as the last contributor on this group, and then we will have two brief contributions from the Front Bench. We anticipate that two Divisions will follow.

[Jim Shannon]

I am very pleased to be called to speak, Mr Evans. The Minister referred to the democratic deficit and clause 13, and that is what I want to focus on. I want to focus on the effect it has on my constituents in Strangford. I thank the right hon. Member for Chipping Barnet (Theresa Villiers) for her significant contribution, too.

I have informed the hon. Member for North Down (Stephen Farry) that I intend to refer to some remarks that were made yesterday. Yesterday, I listened to him as he told hon. Members in the Chamber what conversations took place—he seemed to know better than I did—between me and Lakeland Dairies. To go on the record, let me be quite clear: I have been assured not that Lakeland Dairies is for or against the protocol; rather that it looks at the issue of the protocol and simply wants to know how we intend to deal with it in this place, so it has the information to move forward.

I refuse to allow others in this place to misrepresent me and my relationship with one of the largest employers in my constituency of Strangford. It is also noteworthy that meetings took place on a regular basis between myself and Lakeland Dairies staff, because they understand that I am up to the case and up to the job of helping them. I have had meetings with Lakeland Dairies directors, the Minister here and Ministers in the Department for Environment, Food and Rural Affairs. They were quite clear where they are on those issues. So that is where we are, on the record.

I want to see a way that works for Lakeland Dairies, but also for the seed farmers in my constituency, for the small business person, for the dog owner and for the pharmacist. Lakeland Dairies is not against that either. It has stated an opinion on how its business is currently operating and wants to know how to continue to grow its incredible global enterprise. That should not be twisted by any Member, whether it be the hon. Member for North Down or any other Member.

--- Later in debate ---

[Mr Deputy Speaker]

Clearly, Mr Speaker asked people today to use temperate language, with reference to “Erskine May”, and that stands not just for Prime Minister’s Question Time but for all debates. I know that this is an emotional, sensitive Bill, but people must be very careful with the language that they use at all times.

[Stephen Doughty]

This has been a very wide-ranging and thoughtful debate, albeit with passion at various points. The question of a democratic deficit is one of the key issues that we have discussed. I recognise the concerns of Unionist colleagues in the Chamber, but I find it odd that the Government are pursuing a Bill with parts that remove powers from this place and the Northern Ireland Assembly and give them to Ministers here. It strikes me that that is the real democratic deficit that we are dealing with.

I hope that the other place will look at these matters in great detail in the weeks to come. I indicate our support for amendments 12 and 49, if those are put to a separate decision, but I will withdraw amendment 38.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Clause 21 stand part.

Amendment 50, in clause 22, page 11, line 16, at end insert—

“(1A) A Minister of the Crown may not exercise any power to make regulations conferred by this Act unless a Legislative Consent Motion approving a draft of the regulations has been passed by the Northern Ireland Assembly.”

This amendment would prevent a Minister of the Crown seeking to use powers conferred by this Act to make regulations unless and until the consent of the Northern Ireland Assembly to said regulations has been obtained.

Amendment 51, page 11, line 16, at end insert—

“(1A) A Minister of the Crown may not exercise any power to make regulations conferred by this Act before a Minister of the Crown has presented a draft of the regulations to the UK-EU Joint Committee for discussion and has laid a full report setting out the details of those discussions before each House of Parliament and provided a copy to the Speaker of the Northern Ireland Assembly.”

This amendment would prevent a Minister of the Crown seeking to use powers conferred by this Act to make regulations unless and until said regulations have been presented by a Minister to the UK-EU Joint Committee for a discussion and a report detailing those discussions had been laid before each House of Parliament and a copy provided to the Speaker of the Northern Ireland Assembly.

Amendment 55, page 11, line 16, at end insert—

“(1A) A Minister of the Crown may not exercise any power to make regulations conferred by this Act in contravention of views agreed by the North-South Ministerial Council on EU matters, including those regarding future policies, legislative proposals and programmes under consideration in the EU framework as provided for in Paragraph 17 of Strand Two of the Belfast Agreement.”

Amendment 53, page 12, line 15, at end insert—

“(6A) A Minister may not exercise the power to make regulations under subsection (6) with respect to a devolved authority in Northern Ireland unless the exercise of any power by that devolved authority is approved by the First Minister and deputy First Minister acting jointly—

(a) on behalf of the Northern Ireland Executive,

(b) following a resolution by the Northern Ireland Assembly,

or both.”

This amendment would prevent a Minister of the Crown seeking to use powers conferred by subsection (6) without the agreement of the First Minister and deputy First Minister of Northern Ireland acting jointly has been. The First Minister and deputy First Minister may be acting on behalf of the Northern Ireland Executive and/or following a resolution of the Northern Ireland Assembly.

Clause 22 stand part.

Amendment 19, in clause 23, page 12, line 25, leave out from “to” to “unless” in line 26 and insert “draft affirmative procedure”.

This probing amendment would apply “draft affirmative” procedure in place of regulations being subject to annulment.

Amendment 20, page 12, line 33, leave out “draft affirmative procedure” and insert

“super-affirmative procedure (see section (Super-affirmative resolution procedure: general provisions))”.

This probing amendment would replace draft affirmative procedure with super-affirmative procedure (see NC6).

Amendment 21, page 12, line 33, leave out from “procedure” to the end of line 37.

This probing amendment would prevent Henry VIII powers (amending Acts of Parliament by regulations) being made using the “made affirmative” procedure.

Amendment 22, page 12, line 38, leave out subsections (7) to (9).

This probing amendment would remove the “made affirmative” procedure.

Clauses 23 and 25 stand part.

Amendment 2, in clause 26, page 15, line 41, leave out subsections (2) to (5) and insert—

“(2A) This section comes into force on the day on which this Act is passed.

(2B) The other provisions of this Act come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint.

(2C) A statutory instrument containing regulations under subsection (2B) may not appoint a day for the commencement of any section unless—

(a) a Minister of the Crown has moved a motion in the House of Commons to the effect that a section or sections be commenced on or after a day specified in the motion (‘the specified day’),

(b) the motion has been approved by a resolution of that House,

(c) a motion to the effect that the House of Lords takes note of the specified day (or the day which is proposed to be the specified day) has been tabled in the House of Lords by a Minister of the Crown, and

(d) the day appointed by the regulations is the same as or is after the specified day.

(2D) Regulations under subsection (2B) may—

(a) appoint different days for different purposes;

(b) make transitional or saving provision in connection with the coming into force of any provision of this Act.”

The intention of this amendment, linked to Amendment 1 to clause 1, is to require parliamentary approval for bringing into force any provisions of this Act.

Amendment 33, page 15, line 42, after “section” insert

“, section [consistency with international law]”.

This consequential amendment would bring NC11 into force on the day the Act is passed.

Amendment 3, page 15, line 44, at beginning insert

“Provided that the Northern Ireland Assembly has first passed a resolution indicating support for this Act,”.

This amendment, together with Amendment 4, will make all operational aspects of the Bill dependent upon the approval of the Northern Ireland Assembly.

Amendment 4, page 15, line 45, at end insert—

“(3A) A motion for a resolution of the Northern Ireland Assembly referred to in subsection (3) must be tabled by either—

(a) the First Minister and Deputy First Minister jointly, or

(b) any Member of the Northern Ireland Assembly.”

This amendment, together with Amendment 3, will make all operational aspects of the Bill dependent upon the approval of the Northern Ireland Assembly.

Amendment 47, page 15, line 45, at end insert—

“(3A) Regulations under subsection (3) may not be made unless a draft of the regulations has been laid before, and approved by resolution of, each House of Parliament, except that regulations under subsection (2) relating to tax or customs matters may not be made unless a draft of the regulations has been laid before, and approved by resolution of, the House of Commons.”

This amendment would make all the commencement regulations subject to parliamentary approval.

Clause 26 stand part.

New clause 6—Super-affirmative resolution procedure: general provisions—

“(1) For the purposes of this Act the ‘super-affirmative resolution procedure’ in relation to the making of regulations subject to the super-affirmative resolution procedure is as follows.

(2) The Minister of the Crown must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

(3) If, after the expiry of the 60-day period, the Minister of the Crown wishes to make regulations in the terms of the draft, the Minister of the Crown must lay before each House of Parliament a statement—

(a) stating whether any representations were made under subsection (2)(a); and

(b) if any representations were so made, giving details of them.

(4) The Minister of the Crown may after the laying of such a statement make regulations in the terms of the draft if the regulations are approved by a resolution of each House of Parliament.

(5) However, a committee of either House charged with reporting on the draft regulations may, at any time after the laying of a statement under subsection (3) and before the draft regulations are approved by that House under subsection (4), recommend under this subsection that no further proceedings be taken in relation to the draft regulations.

(6) Where a recommendation is made by a committee of either House under subsection (5) in relation to draft regulations, no proceedings may be taken in relation to the draft regulations in that House under subsection (4) unless the recommendation is, in the same Session, rejected by resolution of that House.

(7) If, after the expiry of the 60-day period, the Minister of the Crown wishes to make regulations order consisting of a version of the draft regulations with material changes, the Minister of the Crown lay before Parliament—

(a) revised draft regulations; and

(b) a statement giving details of—

(i) any representations made under subsection (2)(a); and

(ii) the revisions proposed.

(8) The Minister of the Crown may after laying revised draft regulations and a statement under subsection (7) make regulations in the terms of the revised draft regulations if the revised draft regulations are approved by a resolution of each House of Parliament.

(9) However, a committee of either House charged with reporting on the revised draft regulations may, at any time after the revised draft regulations are laid under subsection (7) and before the revised draft regulations are approved by that House under subsection (8), recommend under this subsection that no further proceedings be taken in relation to the revised draft regulations.

(10) Where a recommendation is made by a committee of either House under subsection (9) in relation to revised draft regulations, no proceedings may be taken in relation to the revised draft regulations in that House under subsection (8) unless the recommendation is, in the same Session, rejected by resolution of that House.

(11) For the purposes of subsections (4) and (8) regulations are made in the terms of draft regulations if the regulations contain no material changes to the provisions of the draft regulations.

(12) In this section the ‘60-day period’ means the period of 60 days beginning with the day on which the draft regulations were laid before Parliament under section 23 of this Act.”

This new clause sets out the bi-cameral super-affirmative procedure regulations under the Act, except in relation to tax and customs matters.

New clause 11—Consistency with international law—

“(1) A Minister of the Crown must not make regulations under this Act unless both the conditions in subsections (2) and (5) have been satisfied.

(2) The condition in this subsection is that a Minister of the Crown has laid before both Houses of Parliament a consistency report from a qualified person in relation to the provisions of the Northern Ireland Protocol that are, in consequence of the regulations, to become excluded provision (‘the provisions at issue’).

(3) For the purposes of subsection (2), a ‘consistency report’ is a report as to whether, in the opinion of the qualified person, it is consistent with the international obligations of the United Kingdom for the provisions at issue to become excluded provision, and which—

(a) sets out the reasons for its conclusions;

(b) sets out the steps taken by the qualified person to obtain the views of persons appearing to the qualified person to have appropriate expertise in questions of international law; and

(c) attaches, or contains references to a publicly available version of, all materials considered by the qualified person in the course of preparing the report.

(4) For the purposes of subsection (2) a ‘qualified person’ is a judge or former judge of—

(a) the Supreme Court of the United Kingdom;

(b) the Court of Appeal of England and Wales;

(c) the Inner House of the Court of Session; or

(d) the Court of Appeal of Northern Ireland.

(5) The condition in this subsection is that—

(a) the House of Commons has approved a resolution to take note of the consistency report on a motion moved by a Minister of the Crown; and

(b) a motion for the House of Lords to take note of the consistency report has been tabled in the House of Lords by a Minister of the Crown and—

(i) the House of Lords has approved a resolution to take note of the report, or

(ii) the House of Lords has not concluded a debate on the motion before the end of the period of five Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a).”

This new clause would prevent any clause of the Bill (or regulations made under it) that create ‘excluded provision’ from coming into force until (a) an authoritative and independent legal expert presents a report to parliament as to whether it is consistent with the international obligations of the United Kingdom, and (b) the House of Commons has passed a motion noting that report, and the House of Lords has debated that report.

New clause 12—Adjudications of matters pertaining to international law—

“No later than two weeks after any finding by any international court, tribunal or arbitration panel that any provision of this Act, or any action taken by a Minister in exercise of powers granted by this Act, is inconsistent with the international obligations of the United Kingdom, a Minister of the Crown must—

(a) report to each House of Parliament setting out the extent to which the relevant court, tribunal or arbitration panel has found that any provision of, or any exercise of power under, this Act is inconsistent with the international legal obligations of the United Kingdom; and

(b) set out what steps Ministers propose take in order to bring the United Kingdom into compliance with those international obligations.”

This new clause would provide that, if an international court, tribunal or arbitration panel found as a matter of fact that any actions taken by the government under the Bill were inconsistent with the UK’s international legal obligations, the Minister must report this finding to the House, and set out what steps the government will take to ensure the UK is in compliance with its international obligations.

New clause 16—Impact assessment—

“Within six months of a Minister of the Crown exercising any power conferred by this Act to make regulations, a Minister of the Crown must publish a full impact assessment of the effect of the regulations on businesses and consumers in Northern Ireland.”

This new clause would require a Minister of the Crown who has exercised any power conferred by this Act to make regulations to publish a full impact assessment of the effect of said regulations on businesses and consumers in Northern Ireland within six months.

New clause 17—Consent of the Northern Ireland Assembly—

“(1) A Minister of the Crown may not exercise the powers to make regulations conferred by this Act before a Legislative Consent Motion approving a draft of the regulations has been passed by the Northern Ireland Assembly.

(2) A Minister of the Crown must, at the end of the relevant period, seek a Legislative Consent Motion approving the continued application of regulations made under the powers conferred by this Act.

(3) For the purposes of subsection (2), the ‘relevant period’ is—

(a) the period ending four years after the powers are exercised; or

(b) the period ending eight years after the powers are exercised where the original Legislative Consent Motion was approved by—

(i) the support of a majority of Members, a majority of designated Nationalists and a majority of Unionists,

(ii) the support of 60 per cent of Members, 40 per cent of designated Nationalists and 40 per cent of designated Unionists, or

(iii) the support of two thirds of Members.”

This new clause would require a Minister of the Crown to obtain the consent of the Northern Ireland Assembly in order to exercise the power to make regulations conferred by this Act. It would also require a Minister of the Crown to obtain the consent of the Northern Ireland Assembly for the continued application of the said regulations within the relevant period. The relevant period would be four years unless the vote passes with a majority in any of the ways described in Clause 3(b), in which case the relevant period is eight years.

New clause 19—Expiry—

“(1) The powers conferred by this Act upon a Minister of the Crown will expire if the Northern Ireland Assembly passes a resolution pursuant to Article 18 of the Northern Ireland Protocol (Democratic Consent in Northern Ireland).

(2) A resolution of the Northern Ireland Assembly under subsection (1) can only pass with one or more of the following measures of representational support—

(a) the support of a majority of Members, a majority of designated Nationalists and a majority of Unionists,

(b) the support of 60 per cent of Members, 40 per cent of designated Nationalists and 40 per cent of designated Unionists, or

(c) the support of two thirds of Members.”

This new clause provides a sunset clause whereby the powers expire if the Northern Ireland Assembly does not vote to approve the continued application of the Northern Protocol in 2024 in the vote required by Article 18 of the Northern Ireland Protocol.

[Michael Ellis]

Let me, for the last time, thank hon. Members who have spoken in the previous Committee stage debates. I remind hon. Members that, although the Northern Ireland protocol was agreed with the best of intentions, it is causing real problems for people and businesses in Northern Ireland, and this legislation will fix those practical problems.

Let me turn to the clauses under scrutiny this afternoon. Clause 19 gives powers to Ministers to implement a new agreement with the European Union as soon as one can be reached. A negotiated agreement with the EU remains the preferred outcome of this Government and this clause demonstrates that very commitment.

Clause 21 allows for preparatory spending undertaken to support the aims of the Bill to be made proper in the eyes of this place. This ensures that the Government can get on with delivering the new regime as soon as possible for the businesses and people of Northern Ireland.

Clause 22 sets out the general scope and nature of the powers contained in the Bill. This will ensure that the powers have the appropriate scope to implement the aims of the Bill, including setting out that regulations made under the Bill can make any provision that can be made by an Act of Parliament.

Regulations under this Bill may not create or facilitate border arrangements between Northern Ireland and the Republic of Ireland, which feature at the border either physical infrastructure, including border posts, or checks and controls that did not exist before exit day. I know that some Members are concerned about the possibility of border checks on the island of Ireland. This is the clearest possible way to show that this Government will not do that.