Northern Ireland Protocol Bill

Stella Creasy Excerpts

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Sir Robert Neill]

I do understand that, which is why I have made it clear from the beginning that I am as much in favour of changes to the protocol as anyone else. Of course, the protocol had provisions written into it to enable those changes to take place, and that is what we would all want to see.

Let us be blunt: there will be a change of Prime Minister soon, and a change of personnel under those circumstances may—I hope it does—make negotiations easier. There has been a degree of strain in relations with the EU and the heads of some major Governments in the European Union. I very much hope that one consequence of what has happened is that it may be easier to rebuild and repair relationships and trust, and that could lead to a negotiated change, which would mean that this legislation was never necessary. Nobody would be more delighted than I—or, I suspect, anyone else in this House, including those on the Treasury Bench—if that were to be the case, but if the Bill is taken forward, we need proper safeguards to ensure proper parliamentary and democratic oversight of the way it is taken into force.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

The hon. Gentleman is making a powerful speech. Of course, Henry VIII only had six wives; this Bill has 19 delegated powers within 26 clauses. Does he agree that if we set a precedent that such legislation could be written here, it may be tempting for some Ministers to expand that precedent to other forms of legislation, so it is important that we confine whenever delegated powers are used—not just in this legislation, but to ensure that we uphold the primacy of this Chamber?

[Sir Robert Neill]

The hon. Lady makes a fair point. Those of us who have served as Ministers know that, frankly, all Governments use Henry VIII powers. We all tend to criticise them when we are in opposition and use them a bit when we are in government, if the truth be known. But the reality is that there are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together, as far as I can see. The powers are almost Shakespearean or Wagnerian in their scope and breadth. That is the problem, and it is why we need some greater hold on how they are used.

The hon. Member for Walthamstow (Stella Creasy) raised another important point. Very wide Henry VIII powers have been criticised by the Hansard Society and in the other place—and for good reason, because part of the whole objective of what we have done is recent years has been to restore parliamentary sovereignty. The danger is that that becomes restoring power to the Executive, rather than to Parliament. I say to my hon. Friends on the Conservative Benches, we all know that Governments come and go, and once we set a precedent that gives sweeping powers to a Government with whom we may happen to agree, inevitably—as night follows day—there will be a day when a Government with whom we do not agree come in and use those powers in a way to which we might wish to object; it is better not to set too wide a precedent, anyway.

There is another difficulty with the powers. Clause 15 gives Ministers powers to add to excluded provisions. Not only is that extremely wide, but the clause refers to excluded provisions for “a permitted purpose”, without any further definition. In other respects, there is a test where the Minister may take any such measures in relation to the protocol as the Minister “considers appropriate”. That is an extraordinarily low test. Essentially, it lacks any kind of objectivity; it is a purely subjective test. Giving Ministers delegated powers to act in a purely subjective manner without requiring them to demonstrate the evidential basis on which they exercise those powers is a dangerous and difficult precedent to set.

In fairness, this Bill could not have been foreseen, but therefore could not be put in my party’s manifesto for the general election. It will be interesting to see—I know Ministers are well aware of this point—precisely what view the other place, which is anxious to examine the extent of delegated powers, takes on the matter. It might therefore be in the Government’s interest to progress the Bill to think about ways in which we can get a better balance, and ensure that there is a proper and proportionate hold on the powers.

I have covered the essence of what I needed to say. It comes down to whether the Government have a case—without going into the rest of the legal argument, I concede that they might be able to make that case—and whether that case might have grounds in law. I would say to my clients in the old days, “Just because it’s lawful doesn’t mean it’s a wise thing to do; just because you’ve got a case that you might argue, it might not necessarily be a good idea for you to go and argue it.” Sometimes litigation is best avoided and sometimes sweeping legislation is best avoided, if it is possible to find a better route.

It seems to me that if need be, it would not be unreasonable for the Government to come back to the House and make their case in relation to the specific items where they seek to disapply an international treaty. If they have a good enough case, the House will support them and they can get on with it; it can be done quickly and need not cause undue delay. That would at least ensure that we have acted within a reasonable and proportionate legal framework. At the same time, we could demonstrate that we are seeking, in good faith, to renegotiate. If we cannot do that, I suggest it would be prudent at the very least to invoke the article 16 safeguard provisions, either before or perhaps in parallel with those matters; we could show again that we have acted in good faith to do all that we could within the framework that exists, which is one of the important parts of a necessity test.

I hope that the Government will take on board those arguments, because they are pretty fundamental to the Bill itself and would not obstruct the objectives of the Bill—that is, getting the protocol changed or getting devolved government working in Northern Ireland, both of which we wish to see—but would enable them in a proportionate and constitutionally sound manner.

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[Sir Jeffrey M. Donaldson]

That brings me to my final point, which is on the democratic deficit.

[Stella Creasy]

rose—

[Sir Jeffrey M. Donaldson]

But before addressing that I give way to the hon. Lady.

[Stella Creasy]

The right hon. Gentleman is talking about businesses and consumers who have been affected. Earlier on, his argument for this Bill was that it would somehow give the certainty that he says the protocol does not give to people. Can he, hand on heart, argue that he knows everything that will happen if the Government proceed with this legislation? Can he really tell his constituents that he can give them certainty in the chaos that we are talking about, which did not start with the protocol but started with Brexit? Where is his proof that this Bill provides certainty—the solution that he is missing—in comparison with what they know now? Better the devil!

[Sir Jeffrey M. Donaldson]

I am many things, but I am not a prophet, so I cannot say with certainty that this will happen or that will happen. But I can point to this: when the protocol, as part of the withdrawal agreement, was before this House, we warned then of the consequences of the protocol. We are not late to the table in recognising the real difficulties that the protocol would cause in Northern Ireland for businesses, consumers, and our place in the United Kingdom. I am certain that the proposals put forward by the Government in this Bill are reasonable, fair and proportionate, and will offer what business needs to continue trading within the United Kingdom and with the European Union. That is the kind of certainty that businesses are looking for.

Let me turn to the point raised by the hon. Member for Stone (Sir William Cash), for whom I have great respect. This is very important. When the Government, and indeed those who supported Brexit, argued very strongly the case for the United Kingdom to leave the European Union, it was about taking back control—control of our borders, our money and our laws. Yet in the part of the United Kingdom that I have had the honour and privilege of representing in this House for 25 years now, this does not apply. As he said, many regulations applying to business in Northern Ireland, and how we trade with the rest of our own country, are now being made in Brussels without any democratic input whatsoever from anyone in Northern Ireland—not from me and my colleagues as Members of Parliament, or from Members of the Legislative Assembly at Stormont.

There is a democratic deficit that means that we are having laws imposed on us over which we have no say. That is not taking back control in our part of the United Kingdom. In terms of money, our rules on VAT and on state aid, for example, are determined not by this Government—not by this place—but by the European Union. We have no input into how our VAT rules are drawn up or into the rules on state aid, which apply to support for businesses in Northern Ireland We do not have complete control of our money in Northern Ireland and we are losing out because of those restrictions. It is therefore very important for us that we get this right. I believe, as I said, that what the Government have proposed is fair and reasonable, and will restore Northern Ireland’s place fully within the UK single market.

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[Michael Ellis]

I am sure that my hon. Friend the Member for Bromley and Chislehurst will have heard what my hon. Friend has said.

I will now turn to amendment 27 and new clause 9, tabled by the hon. Member for Walthamstow (Stella Creasy). The Bill is designed to provide swift solutions to the issues that the protocol has created in Northern Ireland. Those solutions are underpinned by the legal designation of elements of the protocol as excluded provision. Put simply, it is by excluding some elements of the protocol and withdrawal agreement in domestic law that the Bill can introduce the changes that are needed in Northern Ireland with the necessary certainty. Through the conditions they would impose, the hon. Lady’s amendments would undermine the ability to exclude elements of the protocol, and therefore undermine the entire operation of the Bill. I would also argue that they are unnecessary, because the actions they require are already being taken in practice during the passage of the Bill. By voting on its passage, both Houses of Parliament have an opportunity to indicate their approval for the principle of excluding elements of the protocol.

The Government have already clearly set out in the statement of 13 June that we consider the legislation to be lawful in international law. We have also already been clear on why we are not using the article 16 safeguard mechanism: it has inherent limitations on its scope, in that such safeguard measures could address some trade frictions but not the broader identified impacts of the protocol. It is therefore unnecessary to oblige the Government to repeat those statements before exercising the powers conferred by the Bill, which is why I ask the hon. Lady to withdraw her amendments.

[Stella Creasy]

The Minister has said that my amendments are not necessary. That is very welcome, because new clause 9 requires the Government not just to tell us that they believe they are acting within international obligations, but to set out how, so that the House has a chance to confirm that it is not in breach of those obligations. If that is not necessary, can the Minister set out for us how he believes the legislation is in line with international obligations—not that it is, but specifically how?

[Michael Ellis]

I commend to the hon. Lady the legal memorandum that was published by the Government. It is, I think, only the second time that a Government of the day has published such a legal document, and it is exceptionally useful. We cannot publish the full legal advice—no Government can do that.

I will now turn to amendment 8, tabled by the hon. Member for Foyle. I certainly sympathise with the intention of the hon. Gentleman’s amendment, but I reassure him that it is also entirely unnecessary. The Government have no intention whatever to use the power in clause 15 to alter the operation of the domestic consent mechanism, which I think answers the point that was made earlier on the Opposition Benches.

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[Layla Moran]

It is a pleasure to follow the right hon. Member for Hereford and South Herefordshire (Jesse Norman), and I completely agree with him. I and the Liberal Democrats intend to vote against this Bill when it eventually comes to its Third Reading. I will speak today particularly to new clause 8 and its paving amendment 26.

First, however, I want to put on record my huge disappointment that the Bill is in Committee today because, since Second Reading, we have had a lame duck Prime Minister and a Foreign Secretary who cancelled her meeting with G20 leaders in Bali, where she should have been, and instead came back to start her leadership campaign. This Bill is an incredibly controversial move, and it would have been right and proper for it to have gone away for a while—under the definition of “urgent” that the Minister put forward, that would have seemed to make sense—and then come back when it is clear what direction the Government really want to take. Make no mistake, this Bill is going to affect our standing on the world stage.

My amendments relate to the release of the legal advice. It is absolutely right and proper that the Conservative leadership election has turned our eyes to honesty, integrity and, in particular, trust following what has happened with the current Prime Minister, and that is what my amendments do. They ask the Government, “What have you got to hide?” If there is nothing to hide, they should publish the full legal advice and trust this House to scrutinise it properly.

I urge Government Members to look carefully at what the Attorney General has said since giving her advice on this Bill, because she is also running to be leader of the Conservative party, and she has suggested pulling out of the European Court of Human Rights. As we know, the Court underpins the Belfast/Good Friday agreement. The Attorney General does not seem to understand how that correlates with the Good Friday agreement, yet we are relying on her legal advice. I would suggest that that is nothing we can rely on. We understand from newspapers that the Government shopped around for legal advice, and reportedly they even spoke to a former adviser of President Trump. However, if they have nothing to hide, they should publish the advice.

In the Minister’s response to my question earlier, he said the Government may well go to litigation over this and may well be taken to court over the definitions in relation to the doctrine of necessity. As a reason for advice not to be published, he said:

“We know that, famously, from the Labour Government a couple of decades ago, when there was an enormous controversy about that.”

That suggests that we should not see the legal advice because of what happened following the release of the advice on the Iraq war, but we know from the inquiry that that is nonsensical because the Government in that case did have something to hide and were found out later. If this Government want to get the trust of Parliament and do not want to have egg on their face in the international courts, they should release the advice. I urge them to support amendment 26, which I hope—by your leave, Dame Eleanor—we can push to a vote later.

[Stella Creasy]

We are now nearly three hours into the debate and we have not named what the actual problem is. The honest truth is that the problems did not start with the protocol; the problem is Brexit and the necessity of the protocol. For the avoidance of doubt, to acknowledge that Brexit is the problem is not to say that we do not need to change the protocol, it is not to call for us to rejoin the European Union and it is not to call for a second referendum. It is to recognise that selective democratic deafness when trying to discuss what we need to do will continue to damage all our opportunities unless we recognise that there is not a protocol solution that is as perfect as the previous trading arrangements we had.

The risk is that this Bill will make a bad situation worse, like someone having a bad tattoo and taking a blowtorch to it to try to get rid of it. The Government are like the drunk at a party spilling red wine everywhere and then deciding that throwing white wine after it is the solution. That is what this Bill is, which is why Members need to stop saying, like Homer Simpson, that Brexit is a “crisotunity” and recognise that problems are coming from the opportunities they are looking for. There are problems for civil servants who have to go through 2,500 pieces of legislation, and problems for our constituents, especially if the Bill goes through and we have a trade war with Europe. That will hit everybody—not just those in Northern Ireland, but people in my constituency. There are problems caused by the fact that the EU has already launched legal action and could “restrict co-operation”, and problems for the 33% of businesses that have already given up trading with the European Union, including those mentioned by the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson)—I am sorry he is not in his place to talk about these things. [Interruption.] I apologise; he has moved and I could not see him.

We knew these problems were going to happen, yet the Government have done nothing other than introduce this Bill to make things better; they look only to provoke and to make things worse. We talked about oven-ready deals, yet the Foreign Secretary says that the problems were baked in. Frankly, Mary Berry would see the Bill as having a soggy bottom because it is so rubbish.

The report by the Bingham Centre for the Rule of Law states clearly that the Bill is in breach of international law, and that is why I tabled new clause 7. I hope the Minister will recognise that simply repeating again and again, as the legal memorandum does, that the Government believe that the Bill meets the test of necessity under international obligations, without explaining how, is not tort, it is just a tautology. We cannot say something is necessary and not say why it is necessary, or whether the conditions might change—I agree absolutely with the right hon. Member for Hereford and South Herefordshire (Jesse Norman) on those matters. We know there are things we could do to make that clear, and at least to take back control—after all, the Government said that Brexit was about democracy, but it is turning out to be about Downing Street instead.

New clause 10 would ensure that the Government act within international law. New clause 7 is about evidence that we are acting within international law, and about explaining to our constituents why it would be necessary to take such extreme measures. As the Hansard Society tells us, the Bill is breathtaking in the additional powers it takes and the exercise of those excessive powers, with 19 delegated powers under 26 clauses—I have never seen anything like it in this place in the past 12 years. Those powers are based on ideas that Ministers consider “appropriate”, just as they consider what is “necessary”. As we have seen today, however, they cannot really define what “urgent” means. Most people would recognise that “urgent” probably means “immediate”, rather than “sometime in the future.” Considering that any provision can be made by an Act of Parliament, as the hon. Member for Bromley and Chislehurst (Sir Robert Neill) recognised, if we allow that with the Bill, we could see it for other Bills—literally taking back control from these Benches and sending it to the road opposite.

Finally, there is no way that the Bill supports the Good Friday agreement, which, in and of itself, is an international agreement. We want to stand and challenge President Putin as he rips up the rule of law, yet we say that there are rules of law that we think no longer apply to us. How can we say that we will also guarantee the protections of the Good Friday agreement? How can we give the constituents of the right hon. Member for Lagan Valley the certainty they want, and that we recognise they should have, to be able to go about their business and have peace and prosperity, if we act as if the rule of law does not matter or can be bent to shape the will of a particular political movement?

The Bill is about the Government needing Europe to be a bogeyman, and as we have seen from the leadership contest, there are bogeymen aplenty. In reality, this can do only harm. We must recognise that the problem does not start with the protocol. The problem starts with Brexit, and how we negotiate a trade agreement and deal with the problems that arise from leaving the single market and customs union. Our constituents in every part of the United Kingdom deserve that honesty. New clause 7 is about Governments being honest, and just as new clause 10 should not have needed to be tabled, nor should new clause 7, but it did need to be tabled under current circumstances. The people who rely on this place to make reasonable regulations, to admit their problems, as though they were 12-step problems, and to make amends, need and deserve nothing less.

[Ian Paisley]

Why is the Bill necessary? That is what the Committee has just been asked. That is the question. Well, the preamble to the protocol states clearly that its objective is to uphold the Belfast agreement. Why is its objective to uphold the Belfast agreement? Because the Belfast agreement creates something called power sharing. Power sharing has clearly broken down. Some people may not like the reasons for that, but it has broken down, therefore the Bill is necessary. It is as plain and obvious as that—perhaps we have to say it slower for some people to pick up on the reality that power sharing has broken down, and therefore the Bill is necessary. Do not take my word for it: last week in the Select Committee on Northern Ireland Affairs, two international lawyers gave us expert evidence. I think there is only one international lawyer in the Chamber today, the right hon. and learned Member for Torridge and West Devon (Sir Geoffrey Cox), who has stated his position. I respect those opinions, but I do not think there has been any other international law expert or practitioner in the Chamber. I can therefore only quote from experts who have given the Committee their expert opinion through the Northern Ireland Affairs Committee.