Northern Ireland Protocol Bill

Debate between Robert Neill and Andrew Murrison

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Sir Robert Neill]

It does not avail us in relation to the international law test, and the difficulty with this Bill is that it is seeking to disapply parts of the protocol in domestic law, but in a way that breaches an international obligation. In any event, could it be said that all available means had been taken to rectify that potential difficulty? That comes back to my point that the Government—any Government—should have to come to the House and set that out.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

I admire the elegant way in which my hon. Friend has set out the three tests. However, the Joint Committee has been working at this for a long time and it has failed to make progress. At what stage, and in what circumstances, does he envisage that we could proceed on the basis of the provision we are debating at the moment? It seems to me that we have exhausted the possibilities and we are in the position of having to do this now to defend the Good Friday agreement. So why on earth is it necessary to have an amendment that would put another hurdle in the way of Ministers’ trying to resolve this?

[Sir Robert Neill]

With respect, I do not think the amendment would put another hurdle in the way, because it would not prevent the Bill from proceeding and it would not prevent what I know my right hon. Friend wants to see, which is a negotiated settlement. By far the best thing, which everyone in this Committee wants, is for the protocol to be renegotiated. I concede at once that the protocol is not working properly or as it was intended. I also readily concede that part of that is due to a rather intransigent stance taken by the European Commission and its refusal, for example, to give greater flexibility to Vice-President Šefčovič in his negotiating mandate. This is not an issue where all the fault is on one side at all. The EU has not acted wisely or helpfully in these matters, but that is not the same as saying that the international law test is therefore automatically made out as of now.

Northern Ireland Protocol Bill

Debate between Robert Neill and Andrew Murrison

2nd reading
Monday 27th June 2022 Commons Chamber

[Dr Andrew Murrison (South West Wiltshire) (Con)]

It is always a great pleasure to follow the hon. Member for Bristol South (Karin Smyth), although I profoundly disagree with the implication that those of us who decided Britain’s place in the world was best served by leaving the European Union view the EU—let alone the Republic of Ireland, for goodness’ sake—as “the enemy”, to use her words. Clearly, that is not the case.

My right hon. Friend the Secretary of State, who is winding up, will be spoilt for choice when it comes to commenting on speeches. If I may say so, however, in a brief period of time the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) pretty much nailed it with his assertion in an intervention on the hon. Member for North Down (Stephen Farry). The status quo is clearly not compatible with the Good Friday agreement and the Acts of Union, and the doctrine of necessity certainly applies in this case.

It is remarkable, is it not, that the protocol’s supporters appear to be the opposition parties, while those who drafted it and are trying to change it sit on the Conservative Benches? I also enjoyed the remarks of one or two Opposition Members who appeared trenchantly to support the other place in the hope that it will defenestrate this Bill, which I sincerely hope it fails to do. That said, though I welcome this Bill, I hope it will be improved in Committee and in the other place, and in particular that some of the swingeing powers that it gives Ministers will be clipped.

I have to say to Ministers, while assuring them of my support this evening, that I remain somewhat bewildered by their refusal to consider in a meaningful way triggering article 16. That is already available to them, and nobody has marshalled a creditable argument—certainly not one that satisfies me—that it could not or should not be done. The grounds for triggering article 16 are clearly there, in that we do not have anything approaching proper governance in Northern Ireland—not at all. Despite the May elections, the Assembly has failed to assemble and the institutions are not working.

Surely to goodness, those are grounds—the strongest grounds possible—for triggering article 16. They are far stronger, I must say, than the grounds chosen by the President of the European Commission early in 2021 to trigger this thing, albeit very briefly and ignominiously, on the grounds of trying to prevent vaccines from transiting from the Republic of Ireland to Northern Ireland.

[Sir Robert Neill]

My right hon. Friend makes a very important point. Does he agree that, from a legal perspective, if article 16 were to be triggered, at least we would be able to argue that we had used all means available to us under the protocol, as is necessary to meet the necessity test—in other words, that the state has exhausted all the options open to it before it acts unilaterally? That is exactly the value of using article 16.

[Dr Murrison]

I absolutely agree with that. It is argued—of course it is—that triggering article 16 is meant to be temporary. Those of us who have been around a bit realise that temporary very often turns into something far more permanent. However, that would certainly be a reasonable first step in dealing with this situation, which pretty much all of us—apart from the SDLP—agree is unsatisfactory. I am still unsure, despite the earlier remarks of my right hon. Friend the Foreign Secretary, why the Government are not doing that. The Secretary of State, when he winds up, may like to address that.

I would also like to know where in this legislation there is a threat to the single market. Trade between Northern Ireland and the Republic of Ireland is pretty much a rounding error—a point that has been made by others. Companies such as Sainsbury’s do not exist in the Republic of Ireland, so goods going to Sainsbury’s in Northern Ireland from GB cannot possibly land up on Sainsbury’s shelves in the Republic, because there are none. There are more checks on this border than on the border with Chile, and checks for what? It is not clear to me why we need checks at this point in time, since we have an agreement on tariffs and we have standards and regulations that have not yet had the opportunity to diverge.

Many contributors today have talked about the doctrine of necessity, but what they have not mentioned is that there is a second part to that doctrine; it is a lesser part, but it is germane nevertheless. It does not deal with grave or imminent peril; it allows parties to rescind an obligation if to do so would not

“seriously impair an essential interest of the states towards which the obligation exists or of the international community as a whole.”

Where in this Bill, and where, indeed, in triggering article 16, would the threat to the single market come from? Indeed, I would argue, as Ministers certainly have, that the Bill is helpful in many respects to the single market, and it certainly is to the internal market.

So why is the EU doing all this? Why is it not giving Mr Šefčovič the powers he needs in order to negotiate properly with, first, Lord Frost and, secondly, the Foreign Secretary? We can all suggest geopolitical reasons for not doing that, and of course some member states are perfectly happy, for their own benefit, with the status quo. The Republic of Ireland is probably rather enjoying the current export opportunities as a result of Northern Ireland being unable to get what it needs from GB. But we have to hope that the EU, even at this stage, will recognise the damage this is doing to the Good Friday agreement and the prospects of ongoing peace and harmony in Northern Ireland, and that it will, even at this late stage, consider the interests of the people of Northern Ireland first, in which case this Bill will not be needed.

The Government, in my view, signed the Northern Ireland protocol in good faith. They were entitled to receive the same back from the EU, but after 18 months it is plain as a pikestaff that that reciprocation has not happened. It is not as if there are not technical solutions to the current problems. I wrote about this in my report when I chaired the Northern Ireland Affairs Committee. It distresses me that, all this time later, nothing appears to have been done about the recommendations that I made, and that others have made subsequently, to deal with this perfectly elegantly. Of course, things may very well get worse, with the SPS offset through the movement assistance scheme likely to be viewed as ultra vires by the European Court of Justice, and the prospect of energy VAT—I hope very much that it will be reduced in GB—not being reduced in Northern Ireland, completely contrary to the Good Friday agreement and the Acts of Union.

The right hon. Member for Leeds Central (Hilary Benn), who is no longer in his place, said that the EU “needs to move”. It does, but it will not; I hope this legislation gets it moving.