Northern Ireland Protocol Bill

Robert Neill Excerpts

2nd reading
Monday 27th June 2022 Commons Chamber

[Elizabeth Truss]

As I have made clear, the Belfast/Good Friday agreement should have primacy. The fact is that it has been undermined over the past two years, as we can see from the fact that the institutions of Northern Ireland are not up and running. That is why the Government need to act, and we are doing so in a reasonable and legal way.

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

I entirely accept my right hon. Friend’s desire to achieve a negotiated settlement if at all possible; I know how much work has gone into that. To return to the legal point, she will know that the application of the doctrine of necessity requires both the legal tests to be met and the evidential base to be there, because it is largely fact-specific to show whether those tests have been met. I know that the Government have been working hard to assemble that evidential base, but can she tell us when it will be available to the House so that we can form a judgment as to whether those legal tests are met and, therefore, proportionality and necessity are met? It would be helpful to have that before we come to a conclusion on the Bill.

[Elizabeth Truss]

I thank my hon. Friend for that point. There are clearly very severe issues in Northern Ireland, including the fact that its institutions are not up and running, which mean that the UK has to act and cannot allow the situation to drift. I do not think that we have heard what the Opposition’s alternative would be, apart from simply hoping that the EU might suddenly negotiate or come up with a new outcome.

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[Sir Robert Buckland (South Swindon) (Con)]

I have sat diligently through the entire debate, and I think that the House is soberly and carefully examining an issue that is not just about Brexit or our relationship with the EU, but which goes to the heart of the exceptional nature of Northern Ireland and its position in our great United Kingdom. That arrangement was reached a century ago, whether we like it or not. The consequences of Northern Ireland’s exceptional position have made this particular issue so vexed and complicated.

I was in Government when the final withdrawal agreement was negotiated. We all remember—I certainly do with great clarity—the need for there to be an agreement with the EU for us to be able to chart a way forward, not just in terms of our withdrawal and the period of grace that we had for a year after that, but our subsequent trade agreement. For me, that is of paramount importance.

I therefore come to this debate after very careful and measured thought. As an unalloyed pro-European, I still believe in the importance of Britain’s role with our friends in Europe and the importance of maintaining strong bilateral arrangements, and I do not want to see us doing anything hastily that could jeopardise that important continuing relationship. That is why we should heed very strongly the words of my right hon. Friend the Member for Skipton and Ripon (Julian Smith), who was the Secretary of State for Northern Ireland—he worked diligently to bring back that Executive, with great success—about the need for Franco-British bilateral discussions to proceed at pace. In my considered view, that will be how we unlock the sort of negotiation that everybody in the Chamber wants.

Hon. Members are right to talk about the need for negotiation, but the reality is that there is no negotiation. We cannot even call it a negotiation because Maroš Šefčovič, in working for the Commission, needs political direction from the EU and its member states—most notably, France—to be able to even call his discussions with the United Kingdom a negotiation. That is the reality.

Although masterly inactivity is sometimes absolutely the right way for nation states to proceed, I am afraid that that is not an option for us here. A nation should pursue masterly inactivity when it has a position of advantage and I am afraid that we do not have that, because our essential interests are under threat. We have identified our essential interests as the

“maintenance of stable social and political conditions in Northern Ireland, the protection of the 1998 Belfast (Good Friday) Agreement, the effective functioning of the unique constitutional structures created under that Agreement, and the preservation and fostering of social and economic ties between Northern Ireland and the rest of the United Kingdom”.

Here is the point I want to make, in the short time I have: a lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence; it requires a degree of real threat, and growing evidence of a real threat to our essential interests. I would argue that there is such growing evidence. Clearly north-south is entirely unaffected—the respect we are showing for the single market is clear—but there is a growing problem when it comes to east-west. The right hon. Member for Leeds Central (Hilary Benn) put it very well when he talked about the prawn sandwich argument.

I have to say that at a time when there seems to be violent agreement among all the parties of Northern Ireland, and indeed among all of us in this Chamber, the full implementation of the protocol is not what we want to see. Nobody wants that. What on earth are we all arguing about?

[Sir Robert Neill]

My right hon. and learned Friend speaks wisely about these topics, as ever. He refers to the doctrine of necessity and the tests that must be met. I think he will agree that, whether it be imminent or emerging, there has to be evidence that the high threshold is met. Does he think that, in common with the approach adopted in the United Kingdom Internal Market Bill, if there is evidence so pressing as to justify a departure from an international agreement, with the risks that that involves, it should be brought back to this place for the House to decide in a vote? As was then suggested in that Bill, on the evidence available, there should be a parliamentary lock on the use of that important step.

[Sir Robert Buckland]

My hon. Friend makes a powerful case. His amendment to that Bill was adopted by this House in 2020; I thought it was a sensible mechanism to allow this House of Commons to have its final say with regard to the implementation of these measures based on clear evidence.

My point is simply that this is not a matter of law or a question of legality. There is a respectable argument that can be deployed by the British Government to assert necessity, but this is not about the law; it is about the evidence that the Government will need to marshal to demonstrate that point. The Government’s responsibility is to be a good steward of the Good Friday/Belfast agreement.

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

This is a profoundly serious debate, because it is a profoundly serious thing for any country to depart from its international obligations. It is not an impossible thing to do, but it is a profoundly serious thing to do, and it should be done only under circumstances of the most exceptional nature and on the most profound and compelling evidence. That, again, is possible, but we need to test whether we are yet there.

Against that background, I start by saying that everybody accepts the importance of the Northern Ireland protocol as an attempt to reconcile conflicts that were inevitable post Brexit, given the nature of the Brexit that was decided upon. Equally, we must be honest and say that, despite best endeavours, it has failed to reconcile those problems. Therefore, I accept as much as anyone that it does need to change, and change significantly.

I recognise that there are economic dislocations, not in all of the Northern Ireland economy, but enough for it to be a serious problem, and certainly the non-functioning of the Executive at the very least gives rise to the risk of real societal divisions and tensions. Those are circumstances where it is envisaged that there might be changes, but we have to think about whether we are acting proportionately and wisely in what we do.

Looking at the position legally, it is this: logically, there is already a route set out in the protocol by which these matters can be addressed. If there is to be change, there is of course provision in article 13.8 and subsequent articles, and I think article 164 of the withdrawal agreement, for changes to deal with “deficiencies, or…situations unforeseen.” One might well argue that some of the ways the protocol has been interpreted—largely, I would accept, because of the intransigence frequently adopted by the EU side and the unwillingness to extend Mr Šefčovič’s mandate—have contributed to that. That might make a case for acting under those articles.

I also accept that the protocol was never expected to be permanent; it was always envisaged that it could be changed. Equally, however, all that presupposed that it would be changed by negotiation, rather than unilateral action. That is the difficulty we must face here. How do we reconcile the primacy of the Good Friday agreement, which I accept both politically and legally, and the need for adjustment with maintaining our reputation as a country that sticks by its word? Pacta sunt servanda, as we all say.

How do we get around that? The Bill, as currently drafted, does not achieve that. It could do, were it to be amended, and that is why I do not take the view that we should exclude the idea of legislation to act in the way envisaged, but it needs some serious thought. At the moment, as I have suggested elsewhere, it raises as many questions as it answers—and we do not have the answers.

If we are not to go down the route of renegotiated changes envisaged in the protocol, and there may be pressing reasons why that is not achievable in the timeframe available, we then have the ability under article 16 to take emergency safeguarding measures. Those have not yet been used. I agree with my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) that that might be an appropriate route to use. It might not solve all the problems, but, for reasons I will come to, I would suggest that legally it would put the UK in a better position were it then to seek to go further.

If we are to rely upon necessity, as the Government do—I concede that it is a respectable and established concept in international law, but also one that, it is well known, must be used exceptionally and therefore rarely and with a high evidence threshold to be met—it would be much better to have exhausted all opportunities. Indeed, that is part of the doctrine. To invoke necessity, there must be a grave and imminent threat. I agree with my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) that it need not be immediate, but it must be something more than merely contingent or a possibility, and it must be evidenced.

It seems to me that we do not yet have the evidence before us. Before this Bill passes its stages in this House, the Government, who are working on their evidence base and say they will be able to draw together the facts that can be applied to the evidence to substantiate the grounds of necessity, ought to come to the House with that evidence. Going forward, rather than having exceedingly wide Henry VIII powers, I would think it much preferable that we do as we did with the UK Internal Market Bill and require the Government, when they wish to disapply an element of the protocol, to come to the House and seek its endorsement, having presented that evidence to it.

Similarly, I do not see why clause 18, with such wide powers to do virtually anything, is acceptable—that should come back to the House—or why it is necessary in clause 20 to seek to oust the jurisdiction of the European Court at this stage. As yet, the potential jurisdiction of the ECJ is at least contingent and potential, and therefore not pressing and immediate in relation to the doctrine of necessity.

I will not support the Bill tonight, but I will not vote against it; I am deliberately abstaining tonight to see how the Bill develops. It could be amended into a workable form, but it comes with very many caveats and a lot of questions that Ministers need to answer. I hope they will seek to address those.

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[Dr Andrew Murrison (South West Wiltshire) (Con)]

It is always a great pleasure to follow the hon. Member for Bristol South (Karin Smyth), although I profoundly disagree with the implication that those of us who decided Britain’s place in the world was best served by leaving the European Union view the EU—let alone the Republic of Ireland, for goodness’ sake—as “the enemy”, to use her words. Clearly, that is not the case.

My right hon. Friend the Secretary of State, who is winding up, will be spoilt for choice when it comes to commenting on speeches. If I may say so, however, in a brief period of time the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) pretty much nailed it with his assertion in an intervention on the hon. Member for North Down (Stephen Farry). The status quo is clearly not compatible with the Good Friday agreement and the Acts of Union, and the doctrine of necessity certainly applies in this case.

It is remarkable, is it not, that the protocol’s supporters appear to be the opposition parties, while those who drafted it and are trying to change it sit on the Conservative Benches? I also enjoyed the remarks of one or two Opposition Members who appeared trenchantly to support the other place in the hope that it will defenestrate this Bill, which I sincerely hope it fails to do. That said, though I welcome this Bill, I hope it will be improved in Committee and in the other place, and in particular that some of the swingeing powers that it gives Ministers will be clipped.

I have to say to Ministers, while assuring them of my support this evening, that I remain somewhat bewildered by their refusal to consider in a meaningful way triggering article 16. That is already available to them, and nobody has marshalled a creditable argument—certainly not one that satisfies me—that it could not or should not be done. The grounds for triggering article 16 are clearly there, in that we do not have anything approaching proper governance in Northern Ireland—not at all. Despite the May elections, the Assembly has failed to assemble and the institutions are not working.

Surely to goodness, those are grounds—the strongest grounds possible—for triggering article 16. They are far stronger, I must say, than the grounds chosen by the President of the European Commission early in 2021 to trigger this thing, albeit very briefly and ignominiously, on the grounds of trying to prevent vaccines from transiting from the Republic of Ireland to Northern Ireland.

[Sir Robert Neill]

My right hon. Friend makes a very important point. Does he agree that, from a legal perspective, if article 16 were to be triggered, at least we would be able to argue that we had used all means available to us under the protocol, as is necessary to meet the necessity test—in other words, that the state has exhausted all the options open to it before it acts unilaterally? That is exactly the value of using article 16.

[Dr Murrison]

I absolutely agree with that. It is argued—of course it is—that triggering article 16 is meant to be temporary. Those of us who have been around a bit realise that temporary very often turns into something far more permanent. However, that would certainly be a reasonable first step in dealing with this situation, which pretty much all of us—apart from the SDLP—agree is unsatisfactory. I am still unsure, despite the earlier remarks of my right hon. Friend the Foreign Secretary, why the Government are not doing that. The Secretary of State, when he winds up, may like to address that.

I would also like to know where in this legislation there is a threat to the single market. Trade between Northern Ireland and the Republic of Ireland is pretty much a rounding error—a point that has been made by others. Companies such as Sainsbury’s do not exist in the Republic of Ireland, so goods going to Sainsbury’s in Northern Ireland from GB cannot possibly land up on Sainsbury’s shelves in the Republic, because there are none. There are more checks on this border than on the border with Chile, and checks for what? It is not clear to me why we need checks at this point in time, since we have an agreement on tariffs and we have standards and regulations that have not yet had the opportunity to diverge.

Many contributors today have talked about the doctrine of necessity, but what they have not mentioned is that there is a second part to that doctrine; it is a lesser part, but it is germane nevertheless. It does not deal with grave or imminent peril; it allows parties to rescind an obligation if to do so would not

“seriously impair an essential interest of the states towards which the obligation exists or of the international community as a whole.”

Where in this Bill, and where, indeed, in triggering article 16, would the threat to the single market come from? Indeed, I would argue, as Ministers certainly have, that the Bill is helpful in many respects to the single market, and it certainly is to the internal market.

So why is the EU doing all this? Why is it not giving Mr Šefčovič the powers he needs in order to negotiate properly with, first, Lord Frost and, secondly, the Foreign Secretary? We can all suggest geopolitical reasons for not doing that, and of course some member states are perfectly happy, for their own benefit, with the status quo. The Republic of Ireland is probably rather enjoying the current export opportunities as a result of Northern Ireland being unable to get what it needs from GB. But we have to hope that the EU, even at this stage, will recognise the damage this is doing to the Good Friday agreement and the prospects of ongoing peace and harmony in Northern Ireland, and that it will, even at this late stage, consider the interests of the people of Northern Ireland first, in which case this Bill will not be needed.

The Government, in my view, signed the Northern Ireland protocol in good faith. They were entitled to receive the same back from the EU, but after 18 months it is plain as a pikestaff that that reciprocation has not happened. It is not as if there are not technical solutions to the current problems. I wrote about this in my report when I chaired the Northern Ireland Affairs Committee. It distresses me that, all this time later, nothing appears to have been done about the recommendations that I made, and that others have made subsequently, to deal with this perfectly elegantly. Of course, things may very well get worse, with the SPS offset through the movement assistance scheme likely to be viewed as ultra vires by the European Court of Justice, and the prospect of energy VAT—I hope very much that it will be reduced in GB—not being reduced in Northern Ireland, completely contrary to the Good Friday agreement and the Acts of Union.

The right hon. Member for Leeds Central (Hilary Benn), who is no longer in his place, said that the EU “needs to move”. It does, but it will not; I hope this legislation gets it moving.