Northern Ireland Protocol Bill

Sammy Wilson Excerpts

Committee stage
Wednesday 20th July 2022 Commons Chamber

[Michael Ellis]

I do not accept that characterisation. This is very important to the whole community in Northern Ireland and it is very important that we have cross-community consensus in the working of these operations. I do not accept the premise of the hon. Gentleman’s point.

[Sammy Wilson (East Antrim) (DUP)]

Does the Minister accept that in fact this Bill makes all the provision necessary for firms in Northern Ireland that wish to access the single market to be able to do so by opting for dual regulation? Dual regulation is what gives them access to the single market, not oversight by the ECJ.

[Michael Ellis]

The right hon. Gentleman is certainly right about the dual regulatory regime, as the Committee discussed at some length yesterday; I agree with his contention.

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[Michael Ellis]

Thank you, Dame Eleanor.

I simply reiterate to the hon. Lady and the whole Committee that our overriding priority is preserving peace and stability in Northern Ireland, and I make no apology for repeating that. The situation as it stands is undermining the Belfast/Good Friday agreement and it is undermining power-sharing, as proven by the very fact that we do not have an operating Northern Ireland Assembly—surely that is proof positive.

[Sammy Wilson]

Does the Minister share my bafflement at the intervention that he has just had to respond to? On the one hand, SDLP amendment 49 requires the Government to ensure

“the principle that the Belfast Agreement, including its subsequent implementation agreements and arrangements, should be protected in all its parts”,

yet at the same time we are being told that a majority in the Assembly—which does not include one Unionist: a key principle of the Belfast agreement—should override any of the views being expressed by Unionists on these Benches today.

[Michael Ellis]

The right hon. Gentleman makes his point with his usual eloquence, and the citation he makes from the agreement is irrefutable; it is simply on the face of the document.

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[Sir Jeffrey M. Donaldson]

I am happy to follow the Minister. Reference has been made to the oversight of the European Court of Justice. Although our primary concern about the protocol is in respect of trade between Great Britain and Northern Ireland, we do have a concern about the role of the European Court of Justice in respect of oversight, where there is a dispute between the United Kingdom and the European Union on matters pertaining to the protocol. We believe it is unfair and unreasonable that the European Court of Justice should be the final arbiter on such matters.

[Sammy Wilson]

Does my right hon. Friend accept that in no other trade agreement would one side be able to adjudicate on whether the terms were to be accepted? However, in this case, the EU, which has skin in the game, would be the final arbiter in any dispute. That is totally unfair, totally unwarranted and totally unprecedented.

[Sir Jeffrey M. Donaldson]

Indeed, and that speaks to the issue that I raised about the democratic deficit. The Government are endeavouring, through the Bill, to correct the flaws that were evident in the protocol. Although some in the House will point out that the Government signed up to the protocol, I welcome the fact that the Government recognise that the protocol is not working, that it is harmful to Northern Ireland and that changes need to be made. That is very important.

We believe that the democratic deficit needs to be addressed. The European Union has so far shown an unwillingness to introduce proposals that would meet the United Kingdom’s concerns in that regard. We do not yet know whether there will be a change of heart, but in the absence of that, we are with the Government on this: we want a fair and reasonable system.

I repeat what I have said throughout the Committee: if we set aside the process of how we got here and examine the detail of the Government’s proposals as a framework to provide solutions to the problems, I believe that that framework is fair. It respects the integrity of the EU single market and its right to protect that market. However, for us, it also fundamentally recognises and respects the United Kingdom’s right to protect the integrity of and to regulate its internal market. The protocol prevents the Government from doing that for the whole United Kingdom. Northern Ireland is currently subject to regulations that are introduced by the EU in a manner over which we have no say.

Other Members have raised the fact that, at the moment, we do not have a fully functioning Assembly and Executive in Northern Ireland, yet I still do not see or hear an understanding from them of how that situation has arisen. It was with great reluctance that we took the decision to withdraw the First Minister back in February. It only happened after much delay; I stood on the green outside this building and was mocked by the hon. Member for Foyle (Colum Eastwood) for not having followed through on the warning that I had given to withdraw the First Minister. He goaded us, saying that we had not followed through, and he sits on these Benches now and attacks us for taking the decision that we warned we would have to take if progress was not made towards addressing the issues related to the protocol.

I have also said, and reiterated during these debates, that as we make progress and as decisive action is taken by the Government in implementing this legislation, we will of course restore those political institutions, because we want them to work and function in the way that they were intended to. The hon. Members for Foyle and for Belfast South (Claire Hanna) seemed to suggest from a sedentary position that the concept of power sharing and consensus was not a fundamental principle of the Belfast agreement. I have to differ from them on that: I believe that power sharing is at the heart of the Belfast agreement and in the principle that, in a divided society such as Northern Ireland, we cannot have one side with all the power and others excluded from power. Therefore, the concept of power sharing was embraced by the political parties in Northern Ireland and has been the basis on which those political institutions have operated. However, if power sharing is to work, it requires cross-community consensus.

I hear this new language from the SDLP, in particular, and also the Alliance party, who constantly talk about a “majority” of this and a “majority” of that. When Unionists had the majority, however, we were told that majority rule was anathema to the Alliance party and the SDLP—that we could not have a Unionist majority governing in Northern Ireland and there had to be cross-community consensus. However, when Unionists have concerns and issues and say that the cross-community consensus does not exist, our concerns are almost dismissed. Lip service is paid to them but, at every opportunity, there is opposition to reasonable change that would address Unionists’ concerns.

I have not heard from the likes of the SDLP what the solution is, beyond saying, “Let’s have negotiations with the EU”. But negotiations have been tried—there have been 300 hours of negotiations. If the EU is prepared to come back to the table, change its negotiating mandate and act in good faith to get a solution that restores the cross-community consensus in Northern Ireland, bravo. But we see no inclination from the EU that it will do that.

So what do we do? Do we sit back, rub our hands, say, “It’s all too difficult” and wait for the day when, hopefully, the EU will come riding over the hill and rescue the political stability in Northern Ireland, rescue the Belfast agreement and rescue the concept of power sharing on the basis of a cross-community consensus? That has not happened, despite the EU’s bold claims that the protocol was designed to protect the Good Friday agreement and the political institutions. Those institutions are not functioning precisely because there is not a cross-community consensus in support of the protocol.

We need arrangements that reinstate and restore Northern Ireland’s place in the UK internal market, which respects the outcome of article 1 of the agreement—that Northern Ireland remains an integral part of the United Kingdom—as was recognised by the Irish Government and by the people of the Republic of Ireland, who voted in a referendum to change its constitution to recognise that Northern Ireland is part of the United Kingdom. I am afraid that the protocol has disrespected that constitutional settlement—that recognition that, for the time being, that is the settled will of the people of Northern Ireland. These issues are fundamentally important, and addressing the democratic deficit is important.

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[Sir Jeffrey M. Donaldson]

Yes, nationalist concerns need to be heard. I believe that the proposals that the Government have made address the concerns on both sides of the community. They address the need to protect the integrity of the European Union and the need to protect the integrity of the United Kingdom.

Do you know what? In 1998, when the referendum was held on the Good Friday agreement, I voted against it—but on the day the result was announced, I stood outside at Balmoral, in the constituency of the hon. Member for Belfast South, and declared that I accepted the result and would continue to work to change the agreement in a way that would benefit all the people of Northern Ireland. I would love to hear some day from SDLP Members that they finally accept the result of the largest democratic vote ever held in this United Kingdom, in which the people of this nation voted to leave the European Union. If they do not like what has happened, they should work to change the arrangements, as we are trying to do, rather than going back to 2016 and saying, “It’s all too difficult, it’s all terrible and therefore we can’t do anything about it.” The essence of democracy and the essence of good politics is that when you do not like something, you seek to change it.

[Sammy Wilson]

Can my right hon. Friend understand why nationalists will not accept this Bill? I cannot, because first, it will ensure their primary consideration, which is that there be no border between Northern Ireland and the Irish Republic in terms of infrastructure. Secondly, it will address their concerns about the EU single market and ensure that their friends in the EU are protected, because goods going into the Republic will be examined as they come through Northern Ireland and companies in Northern Ireland will be required to abide by EU rules. Thirdly, courts in Northern Ireland will ensure through heavy sanctions that those who try to break the regulations will be punished. At the same time, the Bill will address Unionist concerns about the democratic deficit and ensure that goods can move freely into Northern Ireland from elsewhere in the UK and are not impeded in any way. Does my right hon. Friend agree that both sides can find something in the Bill?

[Sir Jeffrey M. Donaldson]

My right hon. Friend is absolutely right. I believe that if we examine the proposals that the Government are making, we can see that they are fair and balanced. Despite the criticism that some have made that my party supported Brexit, at no stage in the process have we argued for a hard border on the island of Ireland. That is because we recognise the sensitivities of nationalists—it is precisely because as Unionists we are alive to and aware of the sensitivities of nationalists about having infrastructure on the border. We have therefore sought to encourage a solution that respects and acknowledges their concerns, but it would be nice to have a bit of reciprocation from the nationalist side for a change, and a recognition of our concerns that a border in the Irish sea is offensive to us in the same way that a hard border on the island of Ireland is offensive to nationalists.

There are reasonable solutions that can ensure that we avoid a hard border on the island of Ireland and that we avoid a border in the Irish sea for goods moving within the United Kingdom. That is what this Bill does. That is precisely the outcome that it seeks to achieve, and in that respect it is, I think, balanced and fair.

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[Hilary Benn (Leeds Central) (Lab)]

Brexit undoubtably casts a heavy shadow over this debate. The point raised by the right hon. Members for Chipping Barnet (Theresa Villiers) and for Lagan Valley (Sir Jeffrey M. Donaldson) on the democratic deficit is fairly made, although almost all the laws under which Northern Ireland is currently operating apply in the United Kingdom because of retained EU law. We must not get this entirely out of perspective because the Government chose, at the moment of withdrawal, to take EU law, move it across and stick it into UK legislation.

[Sammy Wilson]

Although the right hon. Gentleman makes a valid point about EU law being retained for the rest of the United Kingdom, the vital difference is that the 82 pages of EU law contained in the protocol can be changed. Those changes apply to Northern Ireland, which is where the democratic deficit comes in.

[Hilary Benn]

The right hon. Gentleman makes a fair point, and I understand it entirely. I am talking about the situation as it is today. We should, therefore, be calm and reasonable in describing it.

Let us not forget that Northern Ireland is in a unique and favourable position compared with my constituents, precisely because it has access to both the market of the United Kingdom and the market of the European Union, which is why the polling indicates that businesses in Northern Ireland are very much in favour of having this privileged access, which other parts of the United Kingdom would greatly like.

The right hon. Member for Chipping Barnet correctly made a point about the grace period. I do not understand why the Government did not just continue negotiating within the grace period. [Interruption.] The Minister for the Cabinet Office raises his eyebrows, but we have now been in the grace period for 18 months. I believe there is a problem with the checks that needs to be sorted out, as I have said on the record many times. In my conversations with European colleagues, I have asked them to give me one example of how the integrity, safety and security of the single market has been compromised during the grace period. I have yet to receive an answer that a problem has actually arisen. The longer that goes on—perhaps that would have been the better approach for the Government—the more difficult it becomes for the EU to argue, “There is a fundamental difficulty here, which is why we need the whole panoply”. In the end, we are going to have to identify where the real risks are, and it is a relatively limited number of products. For the rest, particularly those goods that come to supermarkets and businesses in Northern Ireland that are not going anywhere else, a completely different solution could be required, although the Government are going to have a job on their hands to differentiate between the two.

I wish to speak in support of my amendment 12, which I hope might be voted on later, my amendment 13 and other amendments. I said last week that the Bill as a whole was egregious, but clause 18(1), to which amendment 12 refers, is particularly so, because it states:

“A Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol…if the Minister of the Crown considers it appropriate”.

Basically, that is asking the House to legislate to give Ministers a power to do whatever they feel like, provided, in their opinion, that they think it is appropriate. We should listen to what Sir Jonathan Jones, the former Treasury Solicitor has had to say. As my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty), who is on our Front Bench, mentioned, Sir Jonathan described this power as “extraordinary” and said it is a “do whatever you like” power, and no wonder. He also said in the article he wrote that the United Kingdom Internal Market Bill, which led to his resignation, was bad enough, but this Bill is of a “wholly different order”. The Hansard Society has criticised the clause as not being subject to any parliamentary scrutiny whatsoever, a criticism also made by the House of Lords Delegated Powers and Regulatory Reform Committee, which said:

“There is no definition of ‘conduct’ in the Bill itself. And there is nothing on the face of clause 18 that would prevent it from creating legally binding rules of general application.”

The Committee has previously criticised what it calls “disguised legislation,” by which it means

“instruments that are legislative in effect but often not subject to parliamentary oversight. Examples include guidance, determinations, arrangements, codes of practice and public notices. Clause 18 appears to allow all these things to be done, without any parliamentary procedure and in a way that is binding on the general public.”

So the question the Committee reasonably ask of the Minister is: what is this power and what do Ministers want it for? If I heard the Minister correctly, he said that the clause was there merely to ensure that Ministers acted lawfully. What is this “conduct”? I ask because “engage in conduct” is, as the very helpful House of Commons Library note says,

“an unusual form of words for a statutory power.”

If we turn to the Bill’s explanatory notes for some enlightenment, we see that they state that clause 18(1) authorises “sub-legislative activity”. I have been in the House for a few years and I have never come across the concept of “sub-legislative activity”, whatever that is. The only example given in the explanatory notes is guidance. If the Government’s aim is to have a power to issue guidance on matters that they have not thought of in the rest of the Bill or might think of at some point in the future, why does the clause not say, “The Minister will have the power to issue guidance”? It does not say that.

The other example the Minister gave left me even more perplexed. He said that this was to enable Ministers to issue instructions to civil servants. I was a Minister for nine years and I am not aware that I had to refer to a bit of legislation to give instructions to civil servants. I find the explanation wholly incredible, so it begs the question, and ought to beg the question for the Committee, whether one supports the principle of the Bill or not: what are the Government actually seeking to do? The Hansard Society, in its excellent note, makes it clear that that is not a narrow, obscure point. It is about ensuring that relevant legal provisions are drafted and treated consistently with other legislation. That is why the Hansard Society says:

“It also ensures that law-making does not circumvent the publication requirements that accompany, and the parliamentary scrutiny that is afforded to, primary and delegated legislation.”

In this case, the Government have given no explanation of why they believe that the powers are needed—apart from in relation to guidance and instructing civil servants, as we have just heard from the Minister—or why they believe that the powers are administrative rather than legislative. We need to hear from the Minister in his further contribution precisely what conduct is covered by cause 18(1). If he has a list of things in mind, will he please amend the Bill and put them in one by one so that we can see what they are? Secondly, will he give a categorical assurance that this provision will not permit legally binding obligations to be made as a result of that conduct? I raise that issue because the Government have not included clause 18(1) in the Bill’s delegated powers memorandum, which is quite a significant point.

The clause is also indicative of the Government’s wider ambitions for, and the problems they are having with, the Bill. What they really want to do—the Minister has been absolutely open about this, to his great credit—is give themselves the power to do whatever they want in relation to the protocol. They want to be able to turn things on, turn them off and even turn them back on again whenever they feel like it. The fundamental problem, which has become evident over the last two days in Committee, is that, in fairness, Ministers are not entirely clear how some of their proposals—for example, a red customs lane and a green customs lane, or the dual regulatory regime, which we discussed at some length yesterday—will work in practice.

To take the example of the dual regulatory regime, when pressed on whether firms would be required to choose whether to follow EU or UK rules, the Minister said yesterday:

“clause 7 makes it clear that businesses will have a choice which regulatory route to follow when supplying goods to the market in Northern Ireland.”

However, later he said that clause 11 would

“allow a Minister to prescribe a single regulatory route for specific sectors, including a UK-only route with no application of EU law”—[Official Report, 19 July 2022; Vol. 718, c. 877-79.]

In other words, businesses will be absolutely free to choose which system they want to use, unless and until the Government tell them which one they must use.

There is a confusion and a contradiction here. Why would Ministers want to take such a power if they are confident that they have already worked out how a dual regulatory system will work? I do not think they are confident, because they do not know the answer. That is why so many of these Henry VIII powers are dotted throughout the Bill to give the Government the cover they require. For me that goes to the heart of why clause 18(1) is so objectionable and why it has been more widely criticised—apart from the Bill itself—than any other clause: the Government are trying to give themselves a sweeping power and a sweeping-up power. That is why this provision should be removed.

Let me turn briefly to my amendment 13. To be frank, I tabled it as a probing amendment because I was trying to understand the Government’s intention in allowing courts or tribunals in the UK to refer matters to the European Court. There is a bit of a contradiction between clause 20(2), which would prevent any UK court from referring a matter to the European Court, and clause 20(4), which would allow the Government to lay down in regulations a procedure under which courts could refer matters of interpretation of EU law to the European Court. To put it simply, if the Government are planning regulations to allow referrals—if they are not planning that, why does subsection (4) exist—why take a blanket power two subsections earlier to prevent any referrals whatever. The thinking does not seem clear.

Finally, given what I have said about the inappropriate use of the word “appropriate” in the Bill, I support the Opposition amendments, including new clauses 11 and 12, which would change the word “appropriate” to “necessary”. It seems to me that that would provide a better and a higher test for the exercise of ministerial discretion rather than the wide latitude allowed for in the Bill, which has rightly led to so much criticism from so many quarters.