Northern Ireland Protocol Bill

Joanna Cherry Excerpts

2nd reading
Monday 27th June 2022 Commons Chamber

[Elizabeth Truss]

As I said at the outset, our preference is for a negotiated solution, and we have sought that for 18 months, but as recently as last weekend the EU has refused to change the text of the protocol. That is why there is strong legal justification, as set out in our legal statement, for us taking this action. Our priority, as the United Kingdom Government, has to be political stability within our own country. While we put this Bill through Parliament, we will continue to seek a negotiated solution with the EU, and there are provisions in the Bill to deliver that. I would strongly encourage my right hon. Friend to raise this with the EU directly and to encourage a negotiated solution, because there is a solution to be achieved. We have laid it out very clearly with our red and green proposal, but we do need the EU to agree to change the text of the protocol. That is the fundamental issue that needs to be addressed.

[Joanna Cherry (Edinburgh South West) (SNP)]

I am grateful to the Secretary of State for giving way. The Government’s legal position prays in aid the international law doctrine of necessity, but the International Law Commission says that where a state has itself contributed to the situation of necessity, that doctrine cannot be prayed in aid. Given that the Prime Minister signed the withdrawal agreement, including the protocol, in the knowledge that it would give rise to precisely the difficulties of which the Government now complain—we debated it on the Floor of the House—does the Secretary of State not see that there is a pretty big hole in the legal advice she has been given?

[Elizabeth Truss]

We set out the case extremely clearly in the legal advice, and the doctrine of necessity has been used by other Governments in the past where there is a severe issue and the other party is unwilling to renegotiate that treaty. That is the position we are in with the Northern Ireland protocol. What I would ask the hon. and learned Lady and other Members on the Opposition Benches is this: given that the EU refuses to reopen the Northern Ireland protocol, and issues around customs and tax are specifically baked in, what is their solution for dealing with the real issues in Northern Ireland? We have looked at all the alternative solutions, and the only effective solution is this Northern Ireland Protocol Bill, in the absence of the EU being willing to negotiate a new protocol.

--- Later in debate ---

[Mr Lammy]

My right hon. Friend is exactly right. I have been to Washington on three occasions in the past six months, and I can say that across the political divide, Republicans and Democrats have raised the issue. On my most recent visit, they were aghast; they had not seen the content of the Bill at that stage, but they were aghast at the proposition. Perhaps the Northern Ireland Secretary might tell us what our American friends and allies have said in relation to the Bill now that they have seen the draft.

My second question is whether the Bill is in the best interests of this country. As we stand here today, Britain faces the worst cost of living crisis in decades. Inflation is at more than 9%, bills are rising, energy costs are soaring and supply chains are under pressure. It beggars belief why, at this time, the Government would choose to risk new frictions in our trading relations with the EU. They cannot get away with abdicating responsibility for this reckless conduct. If we choose to break a contract, we cannot plausibly expect the other side to take no action in response. We cannot claim that we did not foresee the consequences. Of course the European Union would respond, just as we would if the situation were reversed. I will wager that the Foreign Secretary would be one of the first people to complain if the boot were on the other foot.

A game of brinkmanship with the European Union will only add to our economic problems, but this is not just about economic concerns, important though they are. We must also see the bigger picture. For four months, the Putin regime has fought a bloody war against Ukraine. As a Parliament, we have been united in our support for Ukraine and our staunch opposition to Russia’s aggression. NATO allies and European partners have stood together. How can this be the right moment to deepen a diplomatic row? How can this be the right time to tell our friends and partners that we cannot be relied on? I cannot help noting that some Conservative Members told us that the situation in Ukraine was too serious—that this was not the right time to change Prime Minister. Apparently, however, it is not serious enough to prevent us from starting a diplomatic fight with some of our closest allies.

Thirdly, is the Bill compatible with international law? [Hon. Members: “ Yes.”] Quite simply, the Bill breaks international law. It provides for a wholesale rewrite of an international treaty in domestic law. One of the most troubling aspects is the dangerous legal distortion that is used to justify it. The doctrine of necessity is not an excuse for states to abandon their obligations. It exists to do precisely the opposite: to constrain the circumstances in which states can legitimately claim that their hand has been forced. It requires this action to be the “only way” possible to resolve the issue, but the Government have not used article 16 and still say that a negotiated solution is possible. It requires a grave and imminent peril, but the Government have chosen a route that will involve months of parliamentary wrangling to fix issues such as unequal VAT rates, which no reasonable person could consider a matter of grave peril. It requires the invoking state not to have contributed to the situation of necessity, but the problems are a direct result of the choices that the Government made when negotiating with the European Union. If they were not, we would not need to change the text of the protocol at all.

[Joanna Cherry]

The right hon. Gentleman is making a powerful speech, particularly on the legal points. He has listed all the problems with the Government’s legal note of advice. Does he, like me, find it interesting that, whenever any of us raise these points, no Conservative Member is capable of answering them?

[Mr Lammy]

The hon. and learned Lady knows that there is not a serious Queen’s Counsel in the country who would support the use of the doctrine of necessity in the way in which the Government have sought to use it, and I think that Conservative Members do as well.

--- Later in debate ---

[Dr Murrison]

I am listening to the hon. Gentleman with a great deal of interest. He is right to defend international law and international treaties. Did he raise the concerns he has just expressed when the European Union was busy breaking those treaties—for example, over subsidies to Airbus?

[Joanna Cherry]

Whataboutery!

[Richard Thomson]

My hon. and learned Friend says it very eloquently in one word: whataboutery.

We have been brought here by 40 years of political dysfunction in the Conservative party and the various neuroses it has had over Europe. The exceptionalists of the “punch above our weight” brigade to be found extensively, but not exclusively, within the European Research Group, where research seems to be at a premium, have led us to this point, in the process shredding any reputation that the UK might have preserved either for good, stable government or adherence to international norms.

Whatever the bluff and bluster, and personal agendas that might be at play—I notice that the Foreign Secretary is no longer in her place—it is of course the UK’s exit from the EU rather than the protocol that created this difficult situation, because there were only ever three options that would allow this particular circle to be squared: a return of a border on the island of Ireland, close alignment between UK and EU regulatory standards to reduce the need for checks, or checks to be carried out at the main Northern Ireland ports. The further that there is a diversion from the single market and the customs union, the harder the border then eventually becomes.