Draft Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020

Robin Walker Excerpts

Thursday 26th November 2020 General Committees

[The Chair]

Before we begin, I will mention social distancing again, although you are all sitting in the correct allocated spaces, and when the main Benches were full everybody correctly sat in the Public Gallery at the back.

[The Minister of State, Northern Ireland Office (Mr Robin Walker)]

I beg to move,

That the Committee has considered the draft protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020.

It is a pleasure to serve under your chairmanship, Ms McVey. I put on record my thanks to House staff for the work that they have done to make this Committee Room safe for Members in the current difficult circumstances and, indeed, for doing so for the many statutory instrument Committees that we have dealt with recently.

The regulations fulfil a simple but important task: to reflect in domestic law the consent mechanism set out in the Ireland/Northern Ireland protocol and the UK Government’s unilateral declaration of 17 October 2019. The Belfast/Good Friday agreement is built on the principle of consent. It was ratified by referendums in Northern Ireland and Ireland, and the agreement is crystal clear that any change in the constitutional position of Northern Ireland within the United Kingdom can come about only if the majority in Northern Ireland consents to that change. The vital importance of consent is recognised in the provision for alignment in the protocol to be disapplied if Northern Ireland’s political representatives conclude that it is no longer desirable. Embedding that recognition of consent in the protocol was intrinsic to its acceptance by the Government.

The protocol was designed as a practical solution to avoiding a hard border on the island of Ireland, while ensuring that the UK, including Northern Ireland, could leave the European Union as a whole. The protocol necessarily included a number of special provisions that apply only in Northern Ireland for as long as the protocol is in force. That is why it is for elected representatives in Northern Ireland to decide what happens to the protocol alignment provisions in a consent vote that can take place every four years, with the first vote taking place in 2024. Only elections to the Northern Ireland Assembly and the vote of Members of that Assembly will decide the outcome.

If the draft regulations are approved, the first consent process will take place in 2024. If consent is given at that point, the process will then be repeated every four or eight years—four years if consent is given with a simple majority, eight years if consent is given with cross-community support. This demonstrates that the mechanism is designed to encourage cross-community support, giving the Assembly the opportunity to provide eight years of certainty to Northern Ireland’s businesses and individuals through cross-community agreement.

I have heard arguments that this approach is somehow contrary to or not compatible with the Belfast agreement, and I do not accept that that is so. Our approach is entirely compatible with the agreement. The principle of cross-community support set out in the Belfast agreement applies to internal matters for which the Northern Ireland Assembly is responsible. The consent mechanism, contained as it is in the Northern Ireland protocol, relates to the UK’s continued relationship with the EU, an excepted matter in Northern Ireland’s devolution settlement. That means that the matter at hand falls outside the remit of the Assembly and outside the principle of requiring cross-community support to pass. We have taken the steps we have, with four versus eight years, to incentivise that support.

The regulations implement both the default consent process and an alternative consent process. The default consent process will apply if the First Minister and Deputy First Minister are in office on the day the Secretary of State issues the notification to begin the process—that is, for the first occasion, on 31 October 2024. By contrast, the alternative process will apply if at that point or any future such points the First Minister and Deputy First Minister arere not in office. It should be recalled that the protocol was drafted at such a time, and although we welcome the restoration and subsequent stability that the Executive has achieved, it is right that we have such a fall-back in place.

The alternative process enables any MLA to bring forward the consent motion in the absence of the First Minister and Deputy First Minister. It also puts in place a process to enable the consent vote to take place under the alternative process, even if the Assembly were unable to elect a Speaker when required to do so. That ensures that MLAs will always be able to take a decision on a consent motion, discharging the obligation in international law to facilitate that process.

The Government remain fully committed to implementing the withdrawal agreement and protocol, which were specifically designed to protect the Belfast/Good Friday agreement and the huge gains of the peace process. That is why the alignment provisions within the protocol depend for their legitimacy on consent. That ensures that democratically elected local politicians will decide the future of the protocol in Northern Ireland. By making the regulations, we will ensure that this can be delivered for the people of Northern Ireland, and I therefore commend them to the Committee.

--- Later in debate ---

[Mr Walker]

I am grateful to the hon. Member for Bristol South, who spoke, as always, with great knowledge and passion on these issues. She has made a number of important points. I agree about our responsibilities to the people of Northern Ireland and about working in a constructive way. She referred, a little unfairly, to a deal that we do not yet have. It is important to reflect that, when we are talking about the protocol, this is the deal that was negotiated and agreed between the UK and the EU, and that we are implementing and delivering on. That is part of the fact that we left the European Union with a deal in place earlier this year. I recognise, however, that her point is really that the nature of its impact will depend on the overall deal. Of course, we all hope that there is progress on that in the coming days and weeks.

The hon. Lady made the point about the importance of timing in the process. I recognise that whatever the timing we announced for it, there would be sensitivities and an interaction with the electoral cycle. The regulations that we are debating achieve it in the simplest way by saying that we agreed to a four-year consent mechanism, which applies four years after the deal was effectively done. However we designed it, there would be some interaction with elections somewhere in the UK. It is right, therefore, to default to a simple process.

Of course, we want to support and incentivise the opportunity for cross-community support through the design of the system, which allows for an eight-year process. That would separate it perhaps a little further from the regular patterns of elections across the UK or in Northern Ireland. That provides the opportunity, if it can be demonstrated that the protocol is working effectively, that it can win cross-community support and that it has Assembly Members behind it, to separate it from some of the challenges.

The review mechanism also plays an important part in that and is part of the way in which the consent process encourages the best possible cross-community agreement. That is why if the resolution passes with cross-community support, the next consent decision would be eight years after the first. There is a strong incentive there, not just for Northern Ireland parties, but for the UK Government, to generate the widest possible support for the protocol and Northern Ireland’s unique arrangements.

If the consent mechanism passes with only a simple majority, the UK Government will initiate an independent review into the functioning of the protocol and the implications of any decision to continue or terminate alignment on social, economic and political life in Northern Ireland. The hon. Lady rightly made the point that there are already many Committees and independent reviews to discuss and look into these matters, but the key to the review is in paragraph 8 of the unilateral declaration:

“The independent review will make recommendations to the Government of the United Kingdom, including with regard to any new arrangements it believes could command cross-community support.”

That provides an opportunity to foster and build support. Cross-community support is our aim. We want the protocol to command the widest support possible across Northern Ireland. If in 2024 the consent resolution passes with only a simple majority, we would use the outcome of the independent review to continue to work towards further cross-community support for what would then be a subsequent consent decision in 2028.

As I said in my opening speech, the Government remain fully committed to implementing the withdrawal agreement and the protocol. As ever, our intent and our purpose is to protect the Good Friday/Belfast agreement. That intent was at the heart of our negotiations with the EU last year and is reflected in this consent mechanism. It is something that we will always uphold. Through the mechanism, we ensure that the question of continued alignment with EU law will be decided by those democratically elected to represent the people of Northern Ireland.

Question put and agreed to.