Northern Ireland Protocol Bill

Debate between Robert Neill and Sammy Wilson

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Sir Robert Neill]

I will be happy to talk about the essential tests of necessity, which are well recognised and well set out, as my hon. Friend knows. But the principle behind the amendment, which I will then go into the detail of, is precisely to say, “If you are invoking that doctrine, a most unusual thing to do, you ought to come to the House and set out the basis upon which you seek to do so.” The House would then have the chance to say whether or not we were prepared, on the basis of what the Government had put before us, to take the very exceptional step of putting ourselves in breach of a treaty obligation. That is the point.

[Sammy Wilson (East Antrim) (DUP)]

rose—

[Layla Moran (Oxford West and Abingdon) (LD)]

rose—

[Sir Robert Neill]

I will give way to the right hon. Gentleman first.

[Sammy Wilson]

On the question of necessity, does the hon. Gentleman accept, first, that we have dysfunctional government in Northern Ireland, and that the terms of the Belfast agreement have totally broken down and some have been removed? Secondly, does he accept that that has been brought about as a result not of actions by this Government, but by the protocol, the actions of the EU and the way in which it has insisted that it be applied? Thirdly, does he accept that the EU has not even tried to remedy this, because it has refused to negotiate, so necessity has been proved?

[Sir Robert Neill]

Let me return to that once I have set out the tests, because that is one issue that, with respect to the right hon. Gentleman—I do have much respect for him—the House ought to consider on the factual basis that is set before it. The first test is that departing from the treaty is the only means available to the state party

“to safeguard an essential interest against a grave and imminent peril”.

I quote from the case law and the text of the convention. Let us just break that down. On “an essential interest”, it might be that the Government could, at some point, make a case to say that the disruption in Northern Ireland, be it economic, societal or political, gets to a stage where it could threaten an essential interest of the UK. I concede that, but I have not, as yet, seen the evidence to justify that.

United Kingdom Internal Market Bill

Debate between Robert Neill and Sammy Wilson

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 7th December 2020 Commons Chamber

[Sammy Wilson]

Any agreement that means laws can no longer be made in the United Kingdom, and puts economic barriers between ourselves and our main market, is bound to be a change in the position of Northern Ireland that is totally contrary to the Good Friday agreement, which requires consent.

Some have argued that the Bill puts a safety net in place and that some of the aspects—only some of the aspects; I have to make that very clear—of the withdrawal agreement which could damage the Northern Ireland economy can be countered through the measures in the Bill. That, by the way, is totally in line with the withdrawal agreement itself, which allows the UK Government to act unilaterally where there is economic or societal damage done by the withdrawal agreement. The right hon. Member for Doncaster North (Edward Miliband) said, “Well, there you are. You’ve got your assurance in the withdrawal agreement.” But all the withdrawal agreement states is that the Government will have the right to act unilaterally. They must have the means to act unilaterally. The provision in this Bill gives them the means to act unilaterally. Ministers, notwithstanding what is in the agreement, can make new regulations and new laws that protect the Northern Ireland economy and the Northern Ireland market. That is why it is so essential to have these provisions.

What disappoints me is that we now have the Prime Minister today saying, “By the way, once we have a negotiated settlement and the work of the Joint Committee, then we can withdraw this.” That fails to recognise the nature of what we have entered into. The safety net is there not just for a one-off event, but because we will be continually walking the withdrawal agreement tightrope. Northern Ireland is still going to be subject to the rules of the internal market. Indeed, the withdrawal agreement makes it quite clear that the work of the Joint Committee will go on and on. At any stage, EU officials could demand that checks be placed in Northern Ireland and that UK officials would have to adhere to that. If those demands become unreasonable, we will then need a safety net. If we need a safety net, we do not need it until these negotiations are over. We need it while any part of the withdrawal agreement and the Northern Ireland protocol is in place.

I would therefore like an assurance from the Minister that if the Government intend to withdraw the safety net—if negotiations turn out fine this week—what protection will there be for Northern Ireland from the depredations of the withdrawal agreement in the future? That is important. I believe that this Bill is essential. The Government owe it Northern Ireland, having signed a disastrous agreement this time last year. If the integrity of the UK is to be maintained, the provisions in this Bill and, indeed, other provisions will be necessary.

[Sir Robert Neill]

It is a pleasure to follow the right hon. Member for East Antrim (Sammy Wilson), although I fear that I cannot agree with him on one point. I understand the point of view of those who voted against the withdrawal agreement that they can attack what they regard as its inadequacy. I voted for the withdrawal agreement, as did pretty much everyone else on the Government Benches, and I take the view that one should not deviate or depart from it, save under the most exceptional and pressing circumstances. At the end of the day, despite a great deal of debate, that is pretty much where we have ended up. I would not be comfortable about doing so were it ever necessary. I would not find it attractive. Sometimes, though, events occur in the nature of international negotiations that may render it necessary.

The Government having reflected, as I am glad they did in the Bill’s passage through this House and added the parliamentary lock to clause 56, there is a proportionate means of dealing with such an unwelcome eventuality should it arise. It is not something that we should look to. It is not something that we should desire and it is not something that we should make easy either. It is something that should be done only if a high bar of evidence is met and if this sovereign Parliament—to use a phrase that has been much used—is itself satisfied of that. That is reasonable. It is also not inconsistent with the international law approach under article 46 of the Vienna convention where it is possible, in limited but urgent circumstances, to deviate from an international rule of law if it is necessary to maintain the fundamental internal rule of law of the state. This is not something that has been dreamed up without sound legal foundation, which is why, while I am normally most reluctant to disagree respectfully with two former Lord Chief Justices, Lord Judge and Lord Thomas of Cwmgiedd, both of whom I regard as friends and admire greatly, I do take the view that they take a more restrictive approach than is necessary in this case.

To take a contingent power is not of itself a breach of international law, or of itself a breach of good faith. If that were used disproportionately, or without the sort of checks and balances and proper lock that we have now adopted, I can see that that would be the case. I do not believe that the taking of the power, which has not yet been brought into force and would not be without certain hurdles having been met, itself offends against the principle of the rule of law with every respect. Indeed, I hope that, in that respect, we have managed at all times to adhere to the rule of law. That is why, I am pleased to say, the Government intend to reinstate the parliamentary lock, which was removed by their Lordships as well as those clauses that they found offensive. That was perhaps surprising. I say charitably to my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) that it was perhaps seen as consequential and inevitable if we removed the commencement part of part 5, to be kind.

The reality is that, because the Government have committed to, and reaffirmed today that they are committed to, restoring the parliamentary lock and gone further and indicated that, in subsequent related pieces of legislation, they will adopt the same approach, that does show an internal consistency, a logic, in what is being done. The situation makes me, as somebody who was a lawyer before I came here, and will, I suspect, still regard myself after I have left here, not happy but satisfied that the proper tests have been met in these exceptional circumstances. That is why I am content to support the Government in these motions to disagree tonight, but with the very profound hope that this is never necessary, that we never come anywhere near this, and that the Prime Minister is able to achieve a deal. If he does come up with a deal, he will have my wholehearted support, and the support of many others with a like view, because that is by far the best outcome for the whole country, for the Union and for business.

At the end of the day, I do not think that the clauses that the Lords sought to remove actually offend against propriety and, for that reason, I am prepared to support the Government tonight. They have shown willingness to be pragmatic, to make compromises and to listen. That should be something that one should applaud. I hope therefore that we will be able to return the Bill to their lordships so they can perhaps reflect that it is not necessary for them to insist upon their amendments.