Northern Ireland Protocol Bill

Robin Millar Excerpts

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Sir Robert Neill]

Forgive me, but my hon. Friend asked me to set out the tests and I am doing so. The second test is the necessity to safeguard an essential interest against a “grave and imminent peril”. The Bingham Centre for the Rule of Law has helpfully provided a briefing, setting out that that imports something that very grave indeed—it is a high test—with a degree of urgency to the matter. A possible, contingent or proximate risk does not come within the test of being a “grave and imminent peril”, and that is a risk with the way in which the Bill is drafted at the moment. Again, evidence might be produced to show that it does apply, and the Government might be able to make their case—they ought to do so.

[Robin Millar (Aberconwy) (Con)]

rose—

[Sir Robert Neill]

May I set out the tests, as I was asked to?

The Government need to show that this is also the only means whereby they can safeguard the interest in question. The difficulty they potentially have there is that article 13 of the protocol makes provision for a renegotiation, which most of us would think is the right route to solve these problems, and that in the event of emergency measures, which one might think might be closer to meeting the test of an “imminent peril”, we would then use the unilateral safeguarding provisions under article 16. It might be difficult to argue that necessity is met if we have not attempted and cannot demonstrate that we have attempted those routes first, before moving unilaterally to breaching the protocol.

[Robin Millar]

My hon. Friend makes an interesting point about necessity, and one that has exercised my mind. The Northern Ireland Court of Appeal said that the Acts of Union had been “subjugated” by the protocol. Therefore, what gravity and what imperative does he attach to such an existential threat to the Union?

[Sir Robert Neill]

It does not avail us in relation to the international law test, and the difficulty with this Bill is that it is seeking to disapply parts of the protocol in domestic law, but in a way that breaches an international obligation. In any event, could it be said that all available means had been taken to rectify that potential difficulty? That comes back to my point that the Government—any Government—should have to come to the House and set that out.