Northern Ireland Protocol Bill

Eleanor Laing Excerpts

2nd reading
Monday 27th June 2022 Commons Chamber

[Several hon. Members rose—]

[Madam Deputy Speaker (Dame Eleanor Laing)]

Most unusually, many people who—

[Bell Ribeiro-Addy]

rose—

[Madam Deputy Speaker (Dame Eleanor Laing)]

The hon. Lady has already spoken. She has forgotten. That really confused me—I am counting the people. I admire her enthusiasm. Most unusually, some Members who had indicated to Mr Deputy Speaker earlier that they wished to speak are not in the Chamber and appear not to wish to speak. Therefore, most unusually, I am going to extend the time limit, at least for a short while, to seven minutes.

Northern Ireland Protocol Bill

Eleanor Laing Excerpts

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Michael Ellis]

My right hon. Friend makes an excellent point, as usual. I have to say that I have never heard those requests.

Amendment 10, again tabled by the hon. Member for Foyle, relates to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. They are, of course, important and well-respected institutions. They were established on the basis of the Belfast/Good Friday agreement. They undertake important duties and any change to their remit should not happen arbitrarily. The Government engage regularly with the commissions and they have powers to provide advice to the Government on issues arising from article 2 of the protocol. The Government have engaged broadly on the issues created by the protocol with stakeholder groups across business and civic society in Northern Ireland, the rest of the United Kingdom and internationally. In fact, the engagement has been considerable. As the Committee will know, the Bill provides specific powers to establish a new regime in Northern Ireland which addresses the issues with the current operation of the protocol. We are consulting stakeholders on the detail of how the powers are to be used. We will give plenty of notice to those affected in due course. Therefore, amendment 10 would compel the Government to do what, in many cases, they already intend to do.

We are moving quickly with the Bill because the situation in Northern Ireland is pressing. The power in clause 15 that would, among other things, allow Ministers to reduce the amount of the protocol that is excluded is designed to ensure that we can get the final, detailed design of the regime right. Its use is subject to a necessity test against a defined set of permitted purposes. It is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions that we have outlined to the problems that the protocol is causing.

It is essential that the power can be used quickly if needed. Although, in normal cases, the Government will of course engage with stakeholder groups in Northern Ireland, there may be occasions when the urgency of a situation means that the Government need to act swiftly. This amendment risks tying the Government’s hands behind their back, and that is why I ask the hon. Member for Foyle not to press it.

Amendment 40 is in the name of the right hon. Member for Tottenham, who I do not think is in his place. This is the first of a number of amendments from him in the same vein, to which the Government have a single view. The amendment would replace the test of “appropriateness” in the use of the Bill’s delegated powers with one of “necessity”. Members should not confuse this with the international law doctrine of necessity, as the right hon. Member is doing.

The question covers well-trodden ground. Members may remember the extended debates on this topic during the passage of the European Union (Withdrawal) Act 2018. The powers there are similar to those in this Bill, the European Union (Withdrawal Agreement) Act 2020 and the European Union (Future Relationship) Act 2020. I note that the House and their lordships in the other place ultimately accepted that the word “appropriateness” in this context was, in fact, appropriate.

The word “necessary”, which this amendment seeks to import, is a very strict legal test for a court to interpret. Where there are two or more choices available to Ministers as to what provision is appropriate to address the issues that the protocol has created, arguably neither one is strictly necessary, because there is an alternative. Ministers need to be able to exercise their discretion to choose the most appropriate course. That is why the word “appropriate” is the correct word.

There are clearly multiple choices in how to replace the elements of the protocol that no longer apply in our domestic law. The Government must propose that which would be the most appropriate choice. That is why we have chosen that word. I therefore ask the right hon. Member not to press his amendment.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

Order. Before the Minister comes to his next point, I draw to his attention that a great many people wish to speak in the debate. A lot of people have a right to do so because they are proposing amendments to which I would like to give them time to speak. The Minister has had the floor for 41 minutes. I hope that he might soon be able to draw his remarks to a close, possibly by addressing just the essential parts without the peripheral parts. In that way, there might be enough time, as we have only an hour and a half left of the debate.

[Michael Ellis]

I am in full agreement with you, Dame Eleanor, and I am coming rapidly to a conclusion with my points on new clauses 1, 2 and 3, which relate to the Government’s approach to environmental protection and principles as related to the Bill. They introduce new provisions to the Bill that require Ministers of the Crown to provide statements on the environmental impacts of any powers taken under the Bill prior to being able to exercise those.

I understand the desire of the hon. Member for Foyle to ensure that our high environmental standards are upheld across the United Kingdom. In the UK, we already have some of the highest standards of environmental protection in the world. We have no intention of weakening or lowering those standards. The Government are proudly committed to enshrining better environmental protections in law to demonstrate a firm commitment to the highest environmental standards, as we did in the Environment Act 2021.

The UK Government and the Northern Ireland Executive are already held to account by the independent Office for Environmental Protection, which was created under the Act and has a statutory duty to monitor and report annually on progress on improving the environment in accordance with the UK Government’s environmental improvement plans. The OEP also monitors the implementation of, or any proposed changes to, environmental law, and may hold the Government and public authorities to account for serious failures to comply with it. In addition, the Act already creates a duty on Ministers to be guided by five internationally recognised environmental principles when making policy.

In that context, new clauses 1, 2 and 3 are not necessary, as their purpose is served by existing protections, both practical and legislative. I therefore ask the hon. Member for Foyle not to press the new clauses.

May I return very briefly to the consent mechanism, which operates on an international level? We are committed to the 2024 consent vote, which was a principal goal of the Government’s negotiation, as I alluded to a short time ago.

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[Several hon. Members rose—]

[The Chairman of Ways and Means (Dame Eleanor Laing)]

Order. We had three hours for this debate. The first four speeches have taken more than two hours. We have about 55 minutes left and 10 people wish to speak. I do not have the power to put on a time limit, but you all have the power to act decently, and speak for four or five minutes and no longer. I hold you all to honour. You should take four to five minutes, otherwise you are preventing other people from speaking. I call Sir Geoffrey Cox.

[Sir Geoffrey Cox]

I will be quick. I have listened with fascination to the contributions and speeches made this afternoon. If I thought that the Bill would produce a durable and permanent solution, I would support it, but I do not believe it will produce a durable and permanent solution. The fact is that we cannot impose on Northern Ireland, or on any other party to a treaty that we signed, unilaterally a political solution. A political solution has to be reached politically; it cannot be imposed by this House through legislation. The EU—like it or not—and the Irish Government are a party to these negotiations. Unless we are able to achieve assent to the arrangements that we propose, they will not last. It will have to be resolved ultimately by agreement. It is much the same as the Northern Ireland Troubles (Legacy and Reconciliation) Bill—another attempt by the Government to impose a political solution on Northern Ireland, without first having reached the solution and then produced the legislation that works out and implements that solution. I do not believe that this legislation will produce a permanent solution.

We come to the question of necessity. I am not prepared to say that there is an impossibility that the basis of necessity could not justify the actions that the Government are taking. I have the gravest of misgivings about it, and the deepest of scepticism about whether or not it affords a proper legal basis as a matter of international law, but we have not seen the evidence. It is possible that the Government and my right hon. and learned Friend the Attorney General have seen some evidence that we have not seen that could crystallise at least the plausible case that this action needs to be taken.

I support the amendment tabled by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), but the fact of the matter is that even necessity is not a legal basis for a permanent solution. The doctrine of necessity in international law requires the measures that have been implemented as a necessity to answer the urgent and imminent peril to be removed as soon as the basis for taking action on the grounds of necessity has gone. Indeed, necessity does not even remove the breach; one is still in breach of the agreement. Necessity simply removes the wrongfulness, which further emphasises the fact that necessity cannot produce a permanent solution as a matter of international law. Only agreement—only the reaching of a political solution—can do so.

Nobody need tell me about the politically tone deaf intransigence of the European Union in negotiation. I recall vividly in my visits to Brussels in the early months of 2019, saying to Michel Barnier, “But do you not see, Michel, that this produces an anomalous situation? If a farmer in Northern Ireland wants to take up the issue of cattle tagging, to whom does he go? When the law is imposed by the European Union, the only place he can go is either to Brussels itself or to Dublin, and how will that feel for one whole section of the community of Northern Ireland?” I must tell the Committee that the European Union representatives reacted as if they had been stung by wasps. We have to understand that those at the European Union believe the protocol to be the very zenith of creative diplomacy. They cherish and prize it, as if it were their own child. But that does not mean that we do not need to engage in the patient effort—maybe it will take months, maybe years—gradually to make them see that this is an unsustainable situation.

What we should not do is reach immediately for a solution, over which there are the gravest doubts as to its efficacy as a matter of international law, over which there are the gravest doubts about the sincerity and good faith of the Government—for I take it that the Government have advanced their case on the basis of necessity sincerely. I assume that they must mean, and genuinely mean, that they genuinely believe that there is a respectable case on the basis of necessity. If they do, why should we not at least be told the evidence—the evidence! We can gist it, we can summarise it if it is security sensitive, but at least let this House acquit itself of the doubt that exists over its legal efficacy as a matter of international law. It is no light thing for this House to take a step—

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[Peter Kyle]

New Zealand has been able to negotiate quite diligently and swiftly a veterinary agreement with the European Union. Turkey has been able to agree a customs arrangement with the EU. There has been no law breaking, no storming out of negotiations; representatives sat round the table and got it done. Why does he think that this Government have failed where other Governments have succeeded?

[The Chairman of Ways and Means (Dame Eleanor Laing)]

Order. Before the right hon. and learned Gentleman answers the question, I must say that his rhetoric is matchless, but his arithmetic is rubbish. He has held the Committee for 10 minutes with his matchless rhetoric, and I beg him to draw to a conclusion.

Northern Ireland Protocol Bill

Eleanor Laing Excerpts

Committee stage
Tuesday 19th July 2022 Commons Chamber

[Peter Kyle]

I beg to move amendment 37, page 7, line 10, 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.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

With this it will be convenient to discuss:

Clause stand part.

Amendment 41, in clause 17, page 9, line 40, 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 17 stand part.

[Peter Kyle]

Thank you Dame Eleanor; it is a privilege to serve under your chairship this afternoon.

We are now covering clauses 12 and 17, which deal with subsidies and VAT. These are complex areas of the legislation that speak to a lack of detail in the Bill and about what the Government will actually do in these areas, should the Bill proceed to statute. Clause 12 excludes article 10 and annexes 5 and 6 of the protocol. These are the EU state aid rules relating to goods and wholesale electricity trade between Northern Ireland and the EU. We can immediately see that there is an added complexity to this part of the protocol due to the fact that the electricity industry operates a single wholesale market across the whole island of Ireland. I am not aware that the Government want to try to unpick that—I do not want to give them any ideas—but it illustrates the tangled web that Ministers are creating with this Bill.

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Dame Eleanor, you will be pleased to know that my comments on this group are brief.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

I am happy to tell the hon. Gentleman how impressed I am by that.

[John Redwood (Wokingham) (Con)]

I welcome the notion of measures that restore our control over VAT and subsidies in Northern Ireland. It is entirely within the spirit and the text of the protocol, which says that both parties will respect the internal market of the United Kingdom. How can we have a proper functioning internal market if we have to have rates of VAT in Northern Ireland that are different from the rest of our internal market? And how can we claim that our country’s sovereignty is respected by this part of the agreement, as the EU originally said it would be, if we are not sovereign to change VAT in an important part of the United Kingdom? It is right that we legislate on this issue, because we took back control and we wish to restore the sovereignty of this Parliament. How can we say that we have a sovereign Parliament properly restored if our Chancellor of the Exchequer cannot change VAT in part of the UK? It is right and it is legal that we legislate within the terms of the protocol and the agreement, and it is essential that we do so. Those who favour a negotiated solution with the EU should recognise that a huge amount of time and talent has been put into negotiating with the EU in recent years on these matters, and it has been unwilling to be reasonable or to respect the spirit and even the letter of the protocol itself. It is time to legislate.

I say to those who favour a negotiated solution and still have this idea that the EU will, in due course, negotiate properly over one that it is far more likely to negotiate in a more sympathetic and realistic spirit if it knows that we have the firm backstop of clear legislation, which means we will do the right thing by Northern Ireland and the whole UK if the EU cannot be bothered to meet us and understand what it means for the communities in Northern Ireland.

The EU should also take on board the good advice from the Democratic Unionist party and other members of the Unionist community in Northern Ireland. The whole fabric of the Good Friday agreement rests upon the consent of both communities. The EU says it fully signs up to that and sees it as of prior importance to the protocol, so the EU has to understand that there is no cross-community consent for the current position. The sooner we legislate to sort that out, the better.

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[Gavin Robinson]

No, I would not agree at all with that, because the tariffs came long before the TCA and arise from the protocol. I heard the hon. Member’s suggestion that people were making a mountain out of molehill in relation to VAT on renewables; with respect to him, I think that was a bit of a stretch. I do not agree with him on that, but the tariffs on raw materials coming from one part of our country to another are unnecessary. They are a breach of article 6 of the Act of Union. That breach is constitutional harm arising from the practical application of a protocol that was, I recognise, agreed by this Parliament, but not without warning from us.

Dame Eleanor, you will recognise that none of these contributions is going into extraordinary detail on the issue. There is a complexity to it, but in the real world of politics, consumers and the businesses that we represent, we need a practical solution. Given how limited the amendments in this group are, it is fair to say not only that is it accepted that there needs to be a practical solution, but that this Bill takes us far along that path.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

Sir Geoffrey Robinson.

[Sir Jeffrey M. Donaldson]

Being named after another esteemed Member of this House is, I am sure, a fitting tribute, but thank you, Dame Eleanor, for the opportunity to say a few words in this debate.

[The Chairman]

I apologise to the right hon. Gentleman; I have just realised that I called him by the wrong name—it is 41° C outside.

[Sir Jeffrey M. Donaldson]

Robinson is quite a popular name in the Democratic Unionist party. I am honoured to join my hon. Friend the Member for Belfast East (Gavin Robinson), who has that assignation.

I listened very carefully to the comments that the hon. Member for North Down (Stephen Farry) made about VAT, and particularly the difficulties that arose from the Chancellor’s announcement of a VAT relief on certain energy products that are designed to make homes more energy-efficient. He made the point, and I am sure it is accurate, that according to Treasury figures, Northern Ireland would stand to benefit by an amount in the region of £1 million. However, that highlights the failure of the Alliance party to recognise that for us it is not a matter of the sum involved; it is the principle—the fact that Northern Ireland, which is part of the United Kingdom, as is recognised in the Belfast agreement, in the constitution of the Republic of Ireland and by this Government, cannot benefit from a scheme designed to benefit all our country because the rules of an external body prevent the Treasury from applying that benefit to all the United Kingdom.

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[The Deputy Leader of the House of Commons (Mr Peter Bone)]

On a point of order, Madam Deputy Speaker. I thought it might be appropriate to draw the House’s attention to a small adjustment to the business tomorrow. Given the progress of the Committee of the whole House, we will now take Third Reading of the Northern Ireland Protocol Bill tomorrow. A supplementary programme motion will be tabled tonight to provide an extra hour of debate tomorrow.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I will take any points of order further to that point of order. I see that there are none. I thank the hon. Gentleman for his point of order. It is very useful for the House to know of the change that will be made to tomorrow’s Order Paper.

Northern Ireland Protocol Bill

Eleanor Laing Excerpts

Committee stage
Wednesday 20th July 2022 Commons Chamber

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I beg to move amendment 38, page 7, line 27, 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.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 39, in clause 14, page 8, line 22, 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 14 stand part.

Amendment 12, in clause 18, page 10, line 9, leave out subsection (1).

This amendment would remove the Minister’s power to engage in any conduct in relation to any matter dealt with in the Northern Ireland Protocol, not otherwise authorised by this Act, if the Minister considers it appropriate to do so.

Amendment 42, page 10, line 11, leave out

“the Minister of the Crown considers it appropriate”

and insert “it 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.

Amendment 48, page 10, line 12, after “this Act” insert

“and a motion approving the conduct has been passed by the Northern Ireland Assembly.”

This amendment would subject the exercise of the Minister’s power to engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol that is not otherwise authorised by the Act to a motion approving the conduct in the Northern Ireland Assembly.

Amendment 49, page 10, line 15, at end insert—

“(3) Each Minister of the Crown must have due regard for the principle that the Belfast Agreement, including its subsequent implementation agreements and arrangements, should be protected in all its parts.”

This amendment is based on the fourth point in the Preamble to Northern Ireland Protocol.

Clause 18 stand part.

Amendment 46, in clause 20, page 10, line 32, at end insert—

“But this section may not be brought into force unless it has previously been approved by a resolution of the Northern Ireland Assembly.”

This amendment would prevent the Bill’s proposed departure from the terms of the Northern Ireland Protocol, or from any related provision of the EU withdrawal agreement, in respect of the previously agreed role of the European Court (CJEU) unless clause 20 had first been approved by the Northern Ireland Assembly.

Amendment 13, page 10, line 37, leave out subsection (2)(b).

This amendment would remove the prohibition on a court or tribunal referring any matter to the European Court, where the matter relates to the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement, or domestic law relating to the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement, given that subsection (4) would give ministers the power to make regulations regarding references on a question of interpretation of EU law to be made by Courts and Tribunals.

Amendment 43, page 10, line 38, 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 20 stand part.

[Stephen Doughty]

It is a pleasure to serve with you in the Chair today, Dame Eleanor, as we enter the third day of Committee on the Bill. As we do so, it is evident that instead of working to fix the genuine challenges that the protocol poses, the Government continue to push forward with a Bill that disregards the UK’s international legal obligations and threatens to throw Britain’s global reputation into disrepute, and which also—we shall discuss this today—gives them sweeping powers without restriction. Tearing up binding agreements, threatening to break international law and walking away from the table are not the composites of a good negotiating strategy; they are the hallmarks of a zombie Government, out of steam—a Government who have constantly put their own party squabbles and obsessions before the interests of the people of the UK, and indeed the people of Northern Ireland.

Tragically, they also risk dividing the UK and the European Union when we should be standing shoulder to shoulder in opposing Putin’s barbaric war in Ukraine, and in finding ways to make Brexit work in a spirit of trust and co-operation. This is not how a responsible Government should behave, and many Members across the House know that. What we need is cool heads, statesmanlike behaviour and a search for long-term solutions.

On the Opposition Benches, we feel that the Bill is counterproductive, but that solutions are there if the Government are prepared to seek them. That requires compromise, hard work, and flexibility on all sides, including of course the EU, not knee-jerk reactions. I have listened to the very many genuine concerns that have been voiced about the functioning of the protocol. I have the pleasure of being a member of the British-Irish Parliamentary Assembly in addition to my shadow Front Bench role. I have listened to businesses. I have been in Dublin and Belfast. I have listened to people on all sides and have heard genuine concerns, including from those in the Unionist community.

For months, Labour has called on the Government to do the responsible thing—get back around the table to do what we have always done, and what any Government worth its salt would do, which is to negotiate, in the interests of finding workable, practical and technocratic solutions that command the consent and support of all communities in Northern Ireland, and have the means to bring back power sharing in a meaningful and lasting way. In that spirit, we have offered amendments to the Bill today in good faith, to begin to correct the issues that are manifest across this legislation—starting today with the Henry VIII clauses that we have heard about, and which the amendment that we have tabled in this group address.

As the shadow Foreign Secretary, my right hon. Friend the Member for Tottenham (Mr Lammy), set out during Second Reading, 15 of the 26 clauses included in the Bill confer powers directly on UK Ministers. Those include the power to use secondary legislation to amend or modify Acts of Parliament—Acts that have been subject to the full scrutiny of this House. As the Bingham Centre for the Rule of Law sets out, the Henry VIII powers given to Ministers in the Bill

“are numerous, extensive and subject to very low hurdles before those powers may be exercised.”

Indeed, Professor Catherine Barnard of Cambridge University has called these powers “eye wateringly broad”. The Hansard Society, deeply respected on both sides of the House, describes them as “breath-taking”. And we should not just take their word for it. The Chair of the Justice Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), last week put it perfectly when he said,

“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.”

He went on to describe the Henry VIII powers as

“almost Shakespearean or Wagnerian in their scope and breadth.”—[Official Report, 13 July 2022; Vol. 718, c. 370.]

Awarding Ministers these enormous powers is not a strategy, and the people of Northern Ireland will see it for what it is—a blatant power grab.

The hon. Member for Bromley and Chislehurst identified one of the key problems with these powers when he explained that the test that Ministers must meet before using these powers is “extraordinarily low”. I agree. As the Bill currently stands, in many cases Ministers may use these powers merely if they consider it “appropriate” to do so. That is simply not good enough. Not only is that a woefully low threshold, but it lacks any kind of objectivity. We cannot have a situation where Ministers can make sweeping changes that are not necessarily in the interests of all communities of Northern Ireland, and without proper scrutiny and process; and those of us on the Opposition Benches are extremely concerned about what Ministers may deem appropriate in the future.

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[Michael Ellis]

The hon. Lady is shouting from a sedentary position, but I think I have made the position clear. [Interruption.]

[The Chairman of Ways and Means (Dame Eleanor Laing)]

Order. The hon. Member for Belfast South (Claire Hanna) knows she cannot shout like that while she is sitting down. If she wishes to intervene again she can try to intervene; I will not have this shouting.

[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.