Northern Ireland Protocol Bill

Baroness Winterton of Doncaster Excerpts

2nd reading
Monday 27th June 2022 Commons Chamber

Second Reading.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I must inform the House that the reasoned amendments have not been selected. Before I ask the Foreign Secretary to move Second Reading, I reiterate how important it is for Members who wish to speak in the debate to be here at the beginning to hear all the opening speeches, to stay in the Chamber for the vast majority of the debate and certainly for the winding-up speeches, and to be there in good time. It is very discourteous not to follow those rules, especially on an important debate such as this.

--- Later in debate ---

[Jim Shannon (Strangford) (DUP)]

I thank the Secretary of State for bringing this forward and for her comprehensive understanding of the position of many people in Northern Ireland. As someone who has had businesses contacting me for those who have openly stated that they are from a nationalist tradition and yet feel afraid to voice complaints to their own MP for fear of reprisals, I speak with confidence in assuring the Secretary of State that Northern Ireland as a whole needs this Bill not simply for cultural identity, which is imperative, but for financial viability for small businesses due to the effects of the EU’s vindictive approach to block VAT and state aid. This Bill really is long overdue.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Interventions should be fairly brief because we have a lot of people wanting to speak in this debate.

[Elizabeth Truss]

I was talking about the data that we are sharing with the EU. I am pleased to say that we already have this system in place. We are giving demonstrations to businesses and the EU to show how it works, and I am happy to make those demonstrations available to Members of Parliament as well. Any trader violating the lanes will face penalties and would face ejection from the scheme.

--- Later in debate ---

[Ian Paisley]

On a point of order, Madam Deputy Speaker.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call Ian Paisley on a point of order, but I hope that this is not a way of disrupting the debate.

[Ian Paisley]

Is it in order for the shadow Secretary of State to indicate that he has had negotiations with the Democratic Unionist party when no such negotiations have taken place, Madam Deputy Speaker?

[Madam Deputy Speaker]

I thank the hon. Gentleman for his point of order. He knows that he is well able to ask to intervene again on the shadow Secretary of State. It undermines our debates if we come up with endless points of order that interrupt them. It is not a fair thing to do. The hon. Gentleman will try to catch my eye later; I suggest that we try to respect each other in the Chamber.

[Mr Lammy]

rose—

--- Later in debate ---

[Several hon. Members rose—]

[Madam Deputy Speaker (Dame Rosie Winterton)]

As will be very obvious to everyone here, there are many people who want to contribute to this debate. I do not want to put a time limit on immediately. I think one will be necessary, but it would be greatly helpful if Back-Bench colleagues could confine their remarks to a maximum of 10 minutes, and I think they will be quite popular if they manage to say anything in rather less than that. I call Simon Hoare.

--- Later in debate ---

[Simon Hoare]

I will not, but I know the hon. Gentleman will understand why.

The argument of necessity is clearly not made. The Prime Minister himself wants to see this done by negotiation, and I agree with him. There is the option to trigger article 16 if the Government think that that is necessary. If the situation is as bad as some Ministers would have this House believe, one has to ask why they have not used the emergency brake of article 16, but have instead suggested a calm and tranquil Sunday afternoon walk through a bicameral system of legislative progress—something that will take 10 months. Either the data is as bad as they tell us it is—incidentally, it is not—in which case rapid action is required, or we are just going to do this, which suggests to me that this is all gamesmanship and muscle flexing. Belfast port is now handling a record amount of cargo; last year, it handled a record 25.6 million tonnes. The food and drinks sector is benefitting. More Irish businesses are buying stuff from Northern Ireland, which is good for Northern Ireland plc.

The Henry VIII clauses are wrong, the purpose of the Bill is wrong, and the necessity for it is not proven. I ask this question sincerely of my hon. and right hon. Friends on the Conservative Benches. We are talking about playing fast and loose with our international reputation; playing fast and loose with our adherence to the rule of law; an Executive power grab with Henry VIII clauses; and pandering and giving way to some sort of political brinkmanship on one side of the very sensitive divide in Northern Ireland, which we cannot afford to treat as a plaything. If the Labour party were on the Government Benches and doing what is contained in this Bill, what would our response be, as Conservatives? We would say that this was a party not fit for Government. We would say that it was a party that does not understand or respect our traditions, and that does not understand the importance of reputation. For a fellow Tory to have to point that out to Tories is shameful. I ask my hon. and right hon. Friends to think about what this does to our party’s reputation and to our nation’s reputation, because both are in peril.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the SNP spokesperson.

--- Later in debate ---

[Mrs Theresa May (Maidenhead) (Con)]

I welcome the opportunity to speak in this debate, although I have to say to the lone Minister sitting on the Front Bench that I do not welcome this Bill. I fully understand and share the Government’s desire to uphold the Belfast/Good Friday agreement. I understand and share the desire to keep the Union of the United Kingdom. I recognise the frustration and difficulty when the Northern Ireland Assembly and Executive are not in place and operating. I also share the Government’s desire to get that Assembly and Executive back operating for the good of the people of Northern Ireland. I do not believe, however, that this Bill is the way to achieve those aims.

In thinking about the Bill, I started by asking myself three questions. First, do I consider it to be legal under international law? Secondly, will it achieve its aims? Thirdly, does it at least maintain the standing of the United Kingdom in the eyes of the world? My answer to all three questions is no. That is even before we look at the extraordinarily sweeping powers that the Bill would give to Ministers.

The Government’s claim of legality, as we have heard, is based on the doctrine of necessity in international law. The Government, as the Foreign Secretary said, have published a legal position, and that described this term “necessity” in the following way:

“the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation…the action taken may not seriously impair the essential interests of the other State(s), and cannot be claimed where excluded by the relevant obligation or where the State invoking it has contributed to the situation of necessity.”

Let us examine that. First, if the necessity argument is to hold, this Bill must be the only way to achieve the Government’s desires, yet the Government’s legal position paper itself accepts that there are other ways. For example, it says:

“The Government’s preference remains a negotiated outcome”,

which was reiterated by the Foreign Secretary in her opening speech. The paper also acknowledges that another way to deal with this issue lies in the existence of article 16. The Government’s preferred option is negotiation, and then there is a second option, which is article 16.

Article 16 is referred to in the legal position paper, but when I read that I thought it was referred to in a way that seemed to try to say that the existence of article 16 somehow justifies the introduction of this Bill. Article 16 does not justify this Bill; the very existence of article 16 negates the legal justification for the Bill.

Let us also examine some of the other arguments for invoking the necessity defence. That defence cannot be claimed where the state invoking it has contributed to the situation of necessity. Again, in their legal position paper, the Government set out their argument that

“the peril that has emerged was not inherent in the Protocol’s provisions.”

I find that a most extraordinary statement. The peril is a direct result of the border down the Irish sea, which was an integral and inherent part of the protocol that the Government signed in the withdrawal agreement. It is possible that the Government might say, “Ah well, we knew about that, but we did not think the DUP would react in the way that it has.” I say to the Minister that the Government should have listened to the DUP in the many debates that went on over the withdrawal agreement, because it made its position on the protocol very clear at that point, and it was not positive.

Finally, necessity suggests urgency; “imminent peril” is the phrase used. There is nothing urgent about the Bill. It has not been introduced as emergency legislation. It is likely to take not weeks, but months to get through Parliament. As the former Treasury solicitor Jonathan Jones said in The House magazine,

“If the UK really did face imminent peril, you might think the government would need to deal with it more quickly than that.”

My answer to all those who question whether the Bill is legal under international law is that for all the above reasons, no, it is not.

Question two is whether the Bill will achieve its aims. I am assuming that the aims are either to encourage the DUP into the Northern Ireland Executive, or that the Bill is a negotiating tool to bring the EU back round to the table. On the first of those, so far I have seen no absolute commitment from the DUP that the Executive will be up and running as a result of the Bill. There were rumours that that might happen on Second Reading, but as far as I can see it has not happened. If my right hon. Friend the Foreign Secretary wants to have a discussion with me about negotiations with other parties in this House on various matters, I am happy to do so.

If the Bill is a negotiating tool, will it actually bring the EU back round the table? So far, we have seen no sign of that. My experience was that the EU looks carefully at the political situation in any country. As I discovered after I had faced a no-confidence vote—and despite having won that vote—the EU then starts to ask itself, “Is it really worth negotiating with these people in government, because will they actually be there in any period of time?”, regardless of the justification or otherwise for its taking that view. I suspect those in the EU are saying to themselves, “Why should we negotiate in detail with a Government who show themselves willing to sign an agreement, claim it as a victory and then try to tear part of it up after less than three years?” My answer to the second question as to whether the Bill will achieve its aims is no, it will not.

My final question was about the UK’s standing in the world. The UK’s standing in the world, and our ability to convene and encourage others in the defence of our shared values, depends on the respect that others have for us as a country—a country that keeps its word and displays those shared values in its actions. As a patriot, I would not want to do anything to diminish this country in the eyes of the world. I have to say to the Government that this Bill is not in my view legal in international law, it will not achieve its aims and it will diminish the standing of the United Kingdom in the eyes of the world. I cannot support it.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I am grateful to the Back-Bench speakers so far, who have been very considerate of others in the length of their speeches, but I will after the next speaker have to introduce an eight-minute time limit in order to be able to give everybody equal access.

Northern Ireland Protocol Bill

Baroness Winterton of Doncaster Excerpts

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move amendment 1, page 1, line 3, at end insert—

“(za) comes into effect only in accordance with section 26(2A) to (2D);”.

This amendment is linked to Amendment 2 to clause 26, which would require parliamentary approval for bringing into force any provisions of this Act.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

Amendment 26, page 1, line 3, at end insert—

“(za) requires Ministers of the Crown to set out a legal justification for altering the effect of the Northern Ireland Protocol in domestic law”

This is a paving amendment for NC8.

Amendment 31, page 1, line 4, leave out paragraphs (a) and (b).

Amendment 32, page 1, line 14, leave out from “Protocol” to end of line 15.

Amendment 5, page 1, line 15, at end insert—

“(e) provides powers to Ministers of the Crown that may be exercised only after good faith negotiations with the EU (through the mechanisms provided for in the Northern Ireland Protocol) have been exhausted and only with the approval of both Houses of Parliament and, where relevant, the consent of the Northern Ireland Assembly.”

This amendment would give primacy to a negotiated outcome between the UK and the EU and reflect the consent required by both Houses of Parliament and, where relevant, the Northern Ireland Assembly for powers conferred by the Act to be exercised.

Clause stand part.

Amendment 25, in clause 2, page 1, line 17, at end insert—

“(A1) This section is subject to section (Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly).”

This paving amendment is linked to NC7.

Clause 2 stand part.

Clause 3 stand part.

Amendment 6, in clause 15, page 8, line 47, at end insert—

“(1A) In this section “necessary” means the existence of a situation of grave and imminent peril that relates to one or more of the permitted purposes.”

This amendment defines the standard against which a Minister can exercise powers conferred by clause 15.

Amendment 14, page 8, line 47, at end insert—

“(1A) In this section “unpermitted consequence” means an outcome that would constitute a risk to or detrimental on—

(a) Strand Two of the Belfast Agreement including the North-South Ministerial Council, cooperation and action under the Council or consultation and agreements in all its formats, areas of cooperation and agreed implementation bodies;

(b) Strand Three of the Belfast Agreement, the British-Irish Council and cooperation, common policies or common actions on matters of mutual interest for relevant administrations including on issues, and in ways, referenced in that section of the Agreement;

(c) the single electricity market;

(d) Northern Ireland‘s access to the EU Single Market to the fullest extent permitted by the Protocol;

(e) continuing opportunities for institutions, economic operators and civic interests in Northern Ireland to access and participate in EU programmes and frameworks as permitted under and/or alongside the Protocol;

(f) Northern Ireland‘s access to trade deals between the EU and third countries to the fullest extent permitted by the Protocol;

(g) the productivity of businesses in Northern Ireland and the competitive marketability of goods produced there (through costs or complications associated with possible dual route regulatory compliances).”

This amendment provides that a Minister cannot exercise powers for the permitted purposes in Clause 15 in terms that could entail harmful impact on dimensions of the Good Friday Agreement and/or economic interests of Northern Ireland.

Amendment 27, page 8, line 47, at end insert—

“(1A) But subsection (1) is subject to section (Excluded provision: Parliamentary approval).”

This is a paving amendment for NC9.

Amendment 7, page 9, line 8, after “if” insert

“it does not cause one or more unpermitted consequence and if”.

Amendment 8, page 9, line 15, at end insert—

“(d) Article 18 (Democratic Consent in Northern Ireland)”.

This amendment adds Article 18 (Democratic Consent in Northern Ireland) of the Northern Ireland Protocol to the list of articles that a Minister of the Crown cannot exercise powers conferred by subsection (2) to provide cease to have effect in the United Kingdom to any extent.

Amendment 9, page 9, line 15, at end insert—

“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) until and unless the Minister has laid a report before both Houses of Parliament setting out the Minister of the Crown’s assessment of the necessity to exercise the power for, or in connection with, one or more of the permitted purposes and to state the one or more permitted purposes in question.”

This amendment places a reporting obligation on a Minister exercising powers conferred by section 15 to detail an assessment of why the regulations are necessary and to state the permitted purpose(s) relevant to that assessment.

Amendment 10, page 9, line 15, at end insert—

“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) before full consultation on proposed changes with, in particular—

(a) the Northern Ireland Human Rights Commission,

(b) the Equality Commission for Northern Ireland,

(c) the Committee of representatives of the Human Rights Commission of Northern Ireland and Ireland, and

(d) persons whom the Minister considers appropriate as representatives of business, trade, economic interests and civic groups.”

Clause 15 stand part.

Amendment 40, in clause 16, page 9, line 19, leave out “the Minister considers appropriate” and insert “is necessary”.

This amendment changes the threshold for giving a Minister power to make regulations under this Clause. The threshold is amended to make it objective rather than subjective.

Clause 16 stand part.

New clause 1—Maintaining levels of environmental protection—

“(1) A Minister of the Crown must, before exercising the powers conferred by this Act, make a statement to the effect that in the Minister of the Crown’s view the exercise of the powers would not to any extent have the effect of reducing the level of environmental protection provided for by any existing environmental law.

(2) The Minister of the Crown must seek the views of the Office for Environmental Protection before making a statement under this section.

(3) Any statement under this section must be published in such manner as the Minister of the Crown considers appropriate

(4) The Minister of the Crown must lay a copy of any statement under this section before each House of Parliament.”

This new clause would ensure that the powers proposed to be conferred by this Bill could be exercised only if in the relevant Minister’s view this would not undermine existing levels of environmental protection.

New clause 2—Environmental principles—

“No regulations may be made under this Act unless—

(a) a policy statement on environmental principles has been laid before the Northern Ireland Assembly under paragraph 7(6) of Schedule 2 to the Environment Act 2021, and

(b) paragraph 8 of Schedule 2 to the Environment Act 2021 is in force.”

This new clause would prevent the exercise of any powers proposed to be granted by the Bill until the Department’s policy statement on environmental principles has been finalised and Departments and Ministers are under a statutory duty to have due regard to it.

New clause 3—Meaning of “environmental protection”—

“In this Act “environmental protection” means any of the following—

(a) protection of the natural environment from the effects of human activity;

(b) protection of people from the effects of human activity on the environment;

(c) maintenance, restoration or enhancement of the natural environment;

(d) monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”

New clause 7—Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly—

“Section 2 of this Act has no effect unless it has been approved by a resolution of the Northern Ireland Assembly.”

This new clause would require the approval of the Northern Ireland Assembly before this Act could be used to limit the general implementation of the Northern Ireland Protocol.

New clause 8—Publication of legal advice—

“(1) The Prime Minister must lay before each House of Parliament a copy of the legal advice considered by the Government in respect to this Act which it received before the day of the First Reading in the House of Commons of the Bill for this Act.

(2) The Attorney General must lay before each House of Parliament the assessment made by Her Majesty’s Government of the doctrine of necessity in relation to the operation of the Northern Ireland Protocol prior to the First Reading in the House of Commons of the Bill for this Act.

(3) The Lord Chancellor must lay before each House of Parliament a report on to what extent the Bill for this Act was in accordance with Lord Chancellor‘s constitutional role in relation to the constitutional principle of the rule of law.”

This new clause requires the publication of the legal justification for the Bill for this Act.

New clause 9—Excluded provision: Parliamentary approval—

“(1) A Minister of the Crown may not make regulations that either bring into force any provision of this Act that makes any provision of the Protocol (or any related provision of the Withdrawal Agreement) excluded provision, or that make any such provision excluded provision, unless all three conditions in this section are met.

(2) The first condition in this section is that a Minister of the Crown has laid a statement before both Houses of Parliament setting out reasons—

(a) why, if no safeguard measures under Article 16 of the Protocol have been taken by the United Kingdom, the Minister of the Crown considers it appropriate to exclude a provision or provisions at that time rather than to do so only after the United Kingdom has taken such safeguard measures; and

(b) why and how, in the view of the Minister of the Crown, making the regulations is consistent with the international obligations of the United Kingdom.

(3) The second condition in this section is that the House of Commons has resolved, on a motion moved by a Minister of the Crown, to take note of the statement under subsection (2).

(4) The third condition in this section is that a motion for the House of Lords to take note of that statement has been tabled in the House of Lords by a Minister of the Crown and—

(a) the House of Lords has debated the motion, or

(b) 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, except where the government had already adopted safeguard measures under Article 16, require Ministers to make a statement to the House as to why they thought it appropriate and lawful to treat provisions of the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement as excluded provisions; and to require a House of Commons vote, and a debate in the House of Lords, before those excluded provisions could be brought into force.

New clause 10—Condition prior to limitation of the Northern Ireland Protocol—

“(1) This section sets out the condition which must be satisfied before a provision of—

(a) the Northern Ireland Protocol, or

(b) any other part of the EU withdrawal agreement,

is excluded provision.

(2) The condition must be either—

(a) the agreement condition (see subsection (3)), or

(b) the Article 16 condition (see subsection (4)).

(3) The agreement condition is that the United Kingdom and the EU have agreed following negotiations that the provision is excluded provision.

(4) The Article 16 condition is that—

(a) the United Kingdom is unilaterally taking appropriate safeguard measures, in accordance with Article 16 of the Northern Ireland Protocol,

(b) before taking those measures, the United Kingdom has followed the procedure set out in Annex 7 to the Protocol (which governs the taking of safeguard measures), and

(c) the safeguard measures being taken necessarily require that the provision is excluded provision.

(5) Where the condition is no longer satisfied, then the provision ceases to be excluded provision, and as a consequence any regulations made dealing with excluded provision lapse to the extent that they relate to provision which is no longer excluded provision.

(6) For the avoidance of doubt, the provisions of this Act remain subject to section 7A(2) of the European Union (Withdrawal) Act 2018, save where a provision of—

(a) the Northern Ireland Protocol, or

(b) any other part of the EU withdrawal agreement,

is excluded provision which has satisfied the requirements set out in this section.”

This new clause is intended to prevent Ministers from deviating from the international agreement that is the NI Protocol unless this has either been agreed to between the UK and the EU, or the UK have followed the procedure set out in Article 16 of the Protocol for unilaterally taking safeguard measures.

[Sir Robert Neill]

Amendments 1 and 2, the latter of which amends clause 26, relate to the commencement and operationalisation of the provisions in the Bill. I have drafted them in this way because of the nature of the Bill itself. We will come to amendment 2 on day three, but amendment 1 paves the way for it, so it may be convenient if I set out the thinking behind both amendments.

As was debated at some length on Second Reading—I will not repeat everything that was said—this is an unusual and rather exceptional Bill, and not necessarily in a good way. If fully brought into effect, the Bill would lead to the United Kingdom departing unilaterally from an international agreement and therefore breaking its obligations under both customary international law and the Vienna convention on the law of treaties, which is a grave and profound step for any Government to take.

I recognise that there are circumstances in which that step can be taken, and the Government asserted on Second Reading that the operation of the Northern Ireland protocol gives rise, or potentially gives rise, to those circumstances. The essence of it, though, depends on applying a factual evidence base to a legal test. The legal test in this case is essentially the international customary law convention of necessity, which is now enshrined in article 25 of the articles on state responsibility, which were adopted by the International Law Commission in 2001 and are recognised by the UN General Assembly, by our Government and by the international community as an authoritative statement of the law. Article 25 sets out that necessity may be invoked if certain tests are met. The point of these amendments is to say that if the Government, or any Government, were to take that step, they should do so upon the most compelling grounds, so that the factual basis for their actions met the legal test. The reputational consequences, politically, internationally and legally, are very significant, so this should be done only when that is thoroughly tested and set before this House to be tested.

--- Later in debate ---

[Several hon. Members rose—]

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Just a gentle reminder that quite a few hon. and right hon. Members are wishing to catch my eye. I cannot impose a time limit because we are in Committee stage, but Members may like to bear that in mind.

[Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill). We have become good friends since both serving together on the UK delegation to the Parliamentary Assembly of the Council of Europe, and I hold him in the highest of respect.

On behalf of my colleagues, I pay tribute to the former Secretary of State, the right hon. Member for Great Yarmouth (Brandon Lewis), who is in his place, for the work that he has done in bringing the Bill to this stage, and for the work that he did during his tenure as Secretary of State. He developed a good understanding of the difficulties in Northern Ireland with the protocol and the other issues. I know that it is his desire to move Northern Ireland to the next stage of the peace process to move towards reconciliation, but he recognised that there was a need to deal with these fundamental issues before we could get to that point. I thank him for the work that he has done in that regard. On behalf of my right hon. and hon. Friends, I extend our grateful appreciation.

I also welcome the new Secretary of State, the right hon. Member for North West Cambridgeshire (Shailesh Vara), to his place. I got to know him well when he was a Minister in the Northern Ireland Office and we look forward to working with him in the weeks ahead on the issues that confront us at this time.

I want to respond to the points that have been made in relation to amendment 1 and related amendments, to deal with the question of necessity in particular and the immediacy of the risk that has given rise to the Government introducing this legislation. I understand the points that have been made cogently here. Therefore, it is important, representing one element of the political community in Northern Ireland, to outline why we believe the Bill is necessary. We counsel against impeding the ability of the Government to press forward with this legislation.

On the risk, I echo the comments made by the hon. Member for Aberconwy (Robin Millar). For us as Unionists, there is a risk to the Union in relation to how the protocol is being applied in Northern Ireland. Both the High Court and the Court of Appeal in Northern Ireland have stated that the protocol subjugates article 6 of the Act of Union. That article confers on Northern Ireland citizens the right to trade freely within their own country. It states that there shall be no barrier to trade between the constituent parts of the United Kingdom. No one could reasonably argue that the protocol does not put in place barriers to trade. It most certainly does and I hear that every day from my constituents, whether they are consumers or businesses, and the difficulties that they are facing in trading with the rest of the United Kingdom.

Those difficulties have led to political instability in Northern Ireland. They have had an economic impact in Northern Ireland and I would argue strongly that there is the potential for that to lead to societal problems. We on these Benches have worked hard to ensure that those problems have not arisen. When people have taken to the streets and engaged in violence, we have worked in local communities to prevent a repetition of that. That has been the case across the community. It does not mean, though, that there are not strong feelings, particularly within the Unionist community, about what this protocol means not only for trade, which is important, but for their identity and for their place in the Union. As we have seen over the years in Northern Ireland, when people feel that their identity is threatened, when they feel that their place in the United Kingdom is being undermined, that can lead to societal problems.

The hon. Member for Bromley and Chislehurst has rightly argued that, from his perspective, he is looking to see the immediacy of the risk, but I say to him that it is there, it is very real and I ask him to take on trust from my contacts within the Unionist community that it is bubbling beneath the surface and we have worked hard to try to ensure that that does not emerge.

--- Later in debate ---

[Stephen Farry]

I beg to move amendment 24, page 3, line 3, leave out subsections (1) to (3).

This amendment removes the designation of Article 5(1) to (4) and Annex 2 of the Northern Ireland Protocol relating to movement of goods and customs, as excluded provision.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 34, in clause 5, page 4, line 14, leave out “the Minister considers appropriate” and insert “is necessary”.

This amendment changes the threshold for giving a Minister power to make regulations under this Clause. The threshold is amended to make it objective rather than subjective.

Clause 5 stand part.

Amendment 35, in clause 6, page 4, line 29, leave out “they consider appropriate” and insert “is necessary”.

This amendment changes the threshold for giving a Minister power to make regulations under this Clause. The threshold is amended to make it objective rather than subjective.

Clause 6 stand part.

Amendment 15, in clause 24, page 13, line 16, leave out from “to” to the end of line 22 and insert

“House of Commons draft affirmative procedure”.

This probing amendment would apply “House of Commons draft affirmative” procedure in place of regulations on tax or customs matters being subject to annulment.

Amendment 16, page 13, line 27, leave out from “procedure” to the end of line 32.

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

Amendment 17, page 13, line 34, 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 on tax and customs matters with super-affirmative procedure (see NC5).

Amendment 18, page 13, line 36, leave out subsections (7) to (9).

This amendment is a probing amendment removing the “made affirmative” procedure on tax or customs matters.

Clause 24 stand part.

New clause 4—UK-EU Joint Committee: reduction of sanitary and phytosanitary checks—

“A Minister of the Crown may not exercise any powers conferred by this Act until a Minister of the Crown has sought an agreement at the UK-EU Joint Committee on reducing sanitary and phytosanitary checks and laid a report setting out the details of those discussions before each House of Parliament and provided a copy of that report to the Speaker of the Northern Ireland Assembly.”

New clause 5—Super-affirmative resolution procedure: tax or customs matters—

“(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 Treasury or HMRC must have regard to—

(a) any representations,

(b) any resolution of the House of Commons, and

(c) any recommendations of a committee of the House of Commons 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 Treasury or HMRC wish to make regulations in the terms of the draft, the Treasury or HMRC must lay before the House of Commons 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 Treasury or HMRC 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 the House of Commons.

(5) However, a committee of the House of Commons 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 the House of Commons 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 Treasury or HMRC wish to make regulations order consisting of a version of the draft regulations with material changes, the Treasury or HMRC must lay before the House of Commons—

(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 Treasury or HMRC 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 the House of Commons.

(9) However, a committee of the 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 the House of Commons 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 the House of Commons under section 24 of this Act.”

This new clause sets out the House of Commons super-affirmative procedure for tax and customs matters.

--- Later in debate ---

[Nigel Mills (Amber Valley) (Con)]

It is a pleasure to speak in this debate, Madam Deputy Speaker, and to follow the hon. Member for North Down (Stephen Farry); I agree with some of what he said, if not, perhaps, some of his conclusions. I think that, of all the contents of the Bill, the Government are on the strongest ground when it comes to the clauses we are now debating, and that the EU could have found a way of agreeing with the UK Government how to fix this problem. In the protocol, it was agreed that Northern Ireland was in the UK customs territory, and only goods that were at risk of going into the single market needed to be inspected as they crossed the Irish sea. We ended up with the EU seemingly interpreting everything as possibly being at risk of going into the single market, which produced a ridiculous level of tests that would never be acceptable to the Unionist community of Northern Ireland and are doing the economic damage and causing the tensions we have seen.

It should be obvious and acceptable to both sides that it has been agreed that Northern Ireland will have a foot in both camps: a foot in the EU single market and the EU customs zone, and a foot in the UK single market and the UK customs zone. The only way to make that work is to accept that there is a porous border, where there is no way of exercising the usual level of control that the EU would insist on at its other single market borders around Europe. The key questions for everyone to focus on are these: what goods are we really worried about? What goods have a real risk of crossing that border without being checked—without having the customs declarations and the duty paid, or the various other checks that are required? Finally, how do we put in place measures that can mitigate that risk, and make people on both sides of the border happy that nothing is crossing that border that poses a real threat to the integrity of either market?

To be fair, the UK Government have been extraordinarily generous, not just at the Irish border but at the Dover-Calais border, by not introducing the checks we could have introduced and which we would expect to see at a normal border, because we largely trust goods that are in free circulation in the EU, even if they are not absolutely consistent with UK regulations, either now or in future, or perhaps there is a theoretical customs issue, even though we have a zero-tariff, zero-quota deal, and there may be some duty payable because of rules of origin. We have been extraordinarily relaxed in accepting that those risks are much lower than the risks of trying to impose the burden of huge amounts of checks.

Until we get the EU into the mindset of accepting the same position in relation to goods circulating in Northern Ireland, there is no solution, because at some point there will have to be a border with checks and processes somewhere. We know it cannot be on the island of Ireland. We accepted that trying to make the EU put the border between the European mainland and the island of Ireland would be a horrible situation that the Republic of Ireland could never accept and effectively mean that it had left the single market by mistake, which the Irish Government would never entertain. It always looked to most people that there was the prospect of a compromise by doing something down the Irish sea, where goods spend several hours on a ship allowing for inspections and for declarations to be made, but that it had to be done sensitively and only on the things that were really at risk, otherwise we would end up with the problem we have now, where the Unionist community will not accept it and there is too big a dividing line between the UK mainland and Northern Ireland.

I support what the Government are trying to do and some kind of red and green channel is the right solution. I think the problem we have is that we have extraordinarily little detail about how it will work and how we satisfy the EU that the data we think we can collect and give it is sufficient to get it in a place where it will not have some horrible overreaction. We have not managed to reach an agreement. In fact, I understand it will not even look at our database and the data we could share to see if it is enough to get it there.

We have what looks like a theoretically attractive solution that is the right end position, but we have no idea how to make it work on the ground. We are going from a position where it looked like the EU was going to accept trusted trader exemptions, where everything must be checked and declared unless we have pre-agreed that certain traders are trusted and therefore we can exempt them from it, almost to a position where, if I read red and green right, everything is exempt unless either the trader self-declares that he will go into the single market, or we presumably do some risk-based inspection and spot something that should have been in the red channel in the green channel. It is a stretch to think we will get the EU happy with that without its having serious trust in our internal identification processes.

Then there is the difficult scenario of what happens when somebody changes their mind: goods go into Northern Ireland to be sold in a Northern Ireland store, and then they get low on stock in the Republic of Ireland and decide they want to move them into the Republic. The goods will not have been checked and they will not have done the customs declarations. What will the process be? Where do they go to get the goods checked so that they can legally move them across the border? Or do they just move them, nobody ever checks it, it is all fine and that is that? Again, I would be surprised if we get the EU happy about that. We are going from a position where goods are in free circulation on the island of Ireland, to a position where goods may not be in free circulation on the island of Ireland. How do we fix that?

I urge the Government, as the Bill progresses, to publish the processes for exactly how that will work, and how we can have an effective international border and make the red and green lanes work, so that we can show we are really trying to identify the goods most at risk of cheating or abusing the rules to try to get around them. If we can do that, there is scope to negotiate with the EU and get to the end point that we will inevitably have to get to. Unless the EU wants no border at all or a border on the island of Ireland, it will have to make the system work. That has been apparent for the couple of years since we knew this was coming, but we need to have in place trust between the EU and the UK Administrations, and we need to have the working arrangements and trust between the Irish and the UK authorities in Northern Ireland, so they can work together, trust each other to do joint inspections and share information on a real-time basis—all those common working practices that we have not managed to get to, due to the tensions on both sides, and where we need to get to.

The question we have to ask is: does proceeding with the Bill help us to get towards negotiating a compromised, pragmatic end position or does it make that harder? Fundamentally, I suppose the Government’s answer will be, “We have tried to get the EU somewhere sensible on this matter for the past year or more and we have not managed it. So we will put in place these arrangements and the EU will have a choice: either come and work with us and get to the stage where you are happy with the processes that we have in place and the data we can share with you, or it is just tough—accept what we will offer you.” I sincerely hope, before we do this on a unilateral basis, that at least in this area, where it looks like a compromise should be achieved, we manage to put in place something that both sides are happy with.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I call the shadow Secretary of State.

Northern Ireland Protocol Bill

Baroness Winterton of Doncaster Excerpts

Committee stage
Wednesday 20th July 2022 Commons Chamber

Queen’s consent signified.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I must inform the House that Mr Speaker has not selected the reasoned amendment in the name of Ian Blackford.

[Michael Ellis]

I beg to move, That the Bill be now read the Third time.

While the debates in Committee have been heated—literally, given the ambient temperature—the exchanges have been productive. Members heard detailed scrutiny of the Bill and the Government’s planned solutions to the problems that the protocol is causing in Northern Ireland. Some Members do not agree with the Government’s diagnosis, but it has been reassuring to note how many Opposition Members do agree and accept the problems, even if they do not currently accept that the Government have no choice but to proceed unilaterally. I can understand that, but unfortunately, while our door is always open, there does not appear to be a fruitful negotiation to be had with the European Union at present.

We have not had a Report stage debate, as the Committee did not see fit to amend the Bill. I, and the Government as a whole, see that as a strong vote of support for our proposals, and we hope that those who are eagerly waiting for them to come to pass in Northern Ireland will take heart in the knowledge that they may not have to wait too long, and that the House of Commons has heard them. I hope that the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) and his party will hear that too, and will continue their moves towards returning to power sharing.

The Bill is a powerful toolkit. I know that there are noble Lords in the other place who might think it too powerful, but the Government have been clear on our policy and the range of detailed regulations that will be required, and these are the tools for the job. The Bill provides certainty that the elements of the protocol that have developed into problems will no longer apply in our domestic law and, alongside that, ensures that the Government can honour their promises to the people of all the communities in Northern Ireland. We will protect that which is working to maintain the economic and social framework for north-south traders and nationalists, and we will fix that which is undermining the lives and livelihoods of east-west traders and Unionists.

This Bill is the Government’s top legislative priority. Given the grave situation in Northern Ireland, it must be so. Negotiations will always remain a possibility, and the Bill ensures that implementation of any agreement will not cause further delays. Negotiations tomorrow are always a day away, but it is today in Northern Ireland and the issues are clearly with us now. In the absence of other comprehensive and durable solutions, the Government and Parliament must act. I therefore commend the Bill to the House.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Minister, Stephen Doughty.