Northern Ireland Border

I would like to update the House on current developments regarding the implementation of sanitary and phytosanitary checks at points of entry in Northern Ireland.

Yesterday, Minister Edwin Poots directed his officials in the Department of Agriculture, Environment and Rural Affairs to suspend checks on points of entry for goods from Great Britain from midnight last night. There have been no operational changes on the ground as yet while officials in DAERA seek further advice in response to the direction provided by Minister Poots yesterday.

Although the overarching responsibility for international relations rests with the United Kingdom Government, delivering many of the requirements under the Northern Ireland protocol, including agrifood checks, is a devolved matter and responsibility for doing so falls to the Department of Agriculture, Environment and Rural Affairs in the Northern Ireland Executive. This includes checks that take place at Northern Ireland points of entry.

I spoke to Minister Poots this morning to gain an understanding of his perspective. He explained that he had taken his own legal advice before issuing the direction to officials. He also explained that he had hoped to secure an opportunity for the Northern Ireland Executive to discuss the situation regarding the current implementation of SPS checks at points of entry.

Since the end of the transition period, Minister Poots has been consistent in arguing that the Northern Ireland protocol creates significant challenges for communities in Northern Ireland. The Government recognise that the Northern Ireland protocol is causing significant problems in its current form, which is why we published a command paper last summer setting out an alternative approach to arrangements in Northern Ireland.

We have proposed new arrangements to provide the EU with the assurance that it has requested for its own single market without the need for export health certificates or routine checks at points of entry. Negotiations between my right hon. Friend the Foreign Secretary and Vice-President Šefčovič are continuing, with a further meeting scheduled for later this afternoon. Throughout these talks, our clear priority is to preserve peace and stability in Northern Ireland and to protect the Belfast/Good Friday agreement in all of its dimensions.

The Government recognise the sensitivities that surround the Northern Ireland protocol within communities in Northern Ireland. That is why we continue to represent the interests of Northern Ireland in our discussions with the European Commission and, in the meantime, my officials will continue to liaise with officials in DAERA to support them while we seek a solution.

I shall not wholly thank the Secretary of State for advance sight of his statement, because it arrived in my hand as he got to his feet, but I certainly thank him for making an effort to get it into my possession. We are, again, in a position where the Government are trying to ignore the reality that it was the Prime Minister who negotiated every single word of the Northern Ireland protocol. He told this House that what he had delivered was

“in perfect conformity with the Good Friday agreement”—[Official Report, 19 October 2019; Vol. 666, c. 583.]

and he told the public that it would

“bring to an end far too many years of argument and division”,

but here we are.

The same Government are now arguing that upholding the terms of the deal that they negotiated is not even the responsibility of the United Kingdom Government. Instead, they want us to believe that it is a function of the Northern Ireland Executive. In the last week, the Foreign Secretary and the Northern Ireland Secretary said that the Irish sea border checks are a

“matter for the Northern Ireland Executive”.

The protocol was signed into international law by the UK Government, and now they are bystanders as their deal falls apart, pathetically claiming that it is all somebody else’s responsibility. Let us think of the implications. Is the message that the Welsh Senedd or the Scottish Parliament can break international law too and the Government will have nothing to say about it? It is another piece of vandalism committed against our Union by a reckless Government too busy partying to notice what is going on out there in the real world.

A few moments ago, the Prime Minister’s spokesman said that they had been caught completely unaware by developments—are they kidding? I do not know anyone who did not see it coming. The Foreign Secretary is today negotiating with our EU partners. Does the Secretary of State believe that the events that are unfolding will strengthen her hand in negotiations as she seeks to reassure our partners that we are a credible partner who will stick to our end of negotiations and commitments?

The hon. Gentleman asks about the Northern Ireland protocol, which he will know required that any checks that might be put in place should protect trade within the United Kingdom and should not lead to an unnecessary diversion of trade. That is a key principle of the Northern Ireland protocol. Many of the details as to precisely how any checks would be carried out were deferred in the first instance to the Joint Committee, which completed its work and reached some interim arrangements. It was always understood that the talks would need to continue.

The principle behind the Northern Ireland protocol was to try to protect the provisions of the Belfast/Good Friday agreement, which requires us to protect all communities in Northern Ireland. It is built on the principle of the consent of all communities and the principle of power sharing. The hon. Gentleman is right that the United Kingdom takes the lead role when it comes to international agreements—which is why my right hon. Friend the Foreign Secretary is now leading the discussions with her opposite number in the European Commission to resolve some of these issues—but matters such as SPS and agrifood issues are devolved to the Northern Ireland Executive.

For the reasons I explained earlier, Edwin Poots had sought the agreement of the Northern Ireland Executive, or a discussion with the Northern Ireland Executive, following a particular EU audit that took place last year and implied that individual passenger cars should sometimes be searched to look for food items in people’s personal luggage. His concern was that that would cause difficulties for the very principles of the Belfast/Good Friday agreement. That is why, he says, he sought some authority from the Northern Ireland Executive. He has made it clear that he still intends to bring a discussion of the matter before the Northern Ireland Executive.

The hon. Gentleman asked whether the Secretary of State for Northern Ireland could use reserved powers to issue directions and so on. As he will understand, the bar for such an intervention is high, and rightly so, and is entirely unnecessary at this stage: the checks are continuing and there is currently no change. Yes, a direction has been issued and officials in DAERA are taking their own legal advice, as accounting officers, on elements related to that. We very much hope that, in the first instance, implementation can be delivered in its right and proper place through the Northern Ireland Executive.

I support the Government’s negotiations with the EU on improving the protocol, but will my right hon. Friend clarify that for the civil servants in Northern Ireland who are implementing the current rules his letter still stands? We cannot be a country that agrees an agreement and then does not stand behind it. In the absence of the Executive, which looks to be in a difficult position today, the British Government have to back the letter of 1 April and support the civil servants in Northern Ireland who are doing the checks.

My right hon. Friend was very involved in discussions on and elements of this matter and has a great deal of experience of navigating the politics of Northern Ireland and the community tensions there, but at this particular stage the officials in DAERA are taking legal advice, so we are not yet at the position of having to consider any kind of direction in the way that he suggests. In the first instance, we would all agree that it would be preferable if the Northern Ireland Executive reached a resolution to this issue on their own terms and found an ability to discuss it.

I thank the Secretary of State for advance sight of his statement. Let us be clear why we are discussing this issue: because the current occupant of the most notorious party flat in central London has persistently and simultaneously promised contradictory outcomes in respect of border arrangements between GB and the single market, in the hope that others might eventually develop the same kind of casual attachment that he clearly has to the arrangements into which he enters.

Although, by contrast with the economy of GB alone, the economy of Northern Ireland prospers with its dual membership of the UK single market and the European single market, that clearly comes at some cost to east-west trade frictions and, of course, all the political symbolism that entails. Of course, we could legitimately, lawfully and immediately eliminate the problems of sanitary and phytosanitary checks by entering into a direct agreement with the European Union on these matters, which would be hugely beneficial to all parts of the UK. On television last night, the Secretary of State for Northern Ireland appeared to try to subcontract responsibility for complying with these aspects of international law in respect of the current protocol solely to the Northern Ireland Executive, and this statement does much the same.

What will the UK Government do to ensure that the UK continues to adhere to its international obligations under the protocol, into which they entered freely? In the Secretary of State’s understanding, from which legal authority should civil servants and, indeed, Ministers of the Crown in Northern Ireland take advice on how to act?

As I said earlier, Minister Poots has taken legal advice. Under the constitutional arrangements in Northern Ireland, I understand that he is entitled to issue this direction. The Northern Ireland civil service and DAERA are taking separate legal advice relating to some of the accounting officer issues, and Minister Poots understands why they would want to do that.

On the hon. Gentleman’s wider point, I come back to what I said previously. The agreement on the Northern Ireland protocol required many things, including that there should be no disruption and no unnecessary checks that would cause problems for trade within the UK, which is why there are still grounds for us to try to resolve some of these issues constructively. That is why my right hon. Friend the Foreign Secretary continues to have discussions with the European Commission on this particular point.

I have confidence in and admiration for my right hon. Friend, but I am somewhat disappointed that this matter is being treated as some kind of technical problem when it is actually a constitutional crisis. He says the Northern Ireland Executive should seek to resolve it but, under the Northern Ireland Act 1998, the Northern Ireland Executive resolves matters by agreeing things between the power-sharing parties. They fundamentally disagree on this matter because the Northern Ireland protocol is, in fact, incompatible with the Good Friday agreement. The protocol is also incompatible with the Act of Union, because it has been ruled that it supersedes the Act of Union. And the European Union says there are not enough checks taking place.

Is it not now clear that the Northern Ireland protocol is unfit for purpose and is not delivering on what it said on the tin, which is that it would strengthen and underpin the Good Friday agreement? It needs to be scrapped and replaced by something completely different, and the EU should agree to that. The EU is the only party that has threatened to put infrastructure on the border in Northern Ireland, and we should keep reminding the EU that it is the one threatening the peace in Northern Ireland.

My hon. Friend makes an important point, and it is why the UK Government have engaged in negotiations with the European Union to seek important changes. We are motivated solely by our commitment to the Belfast/Good Friday agreement. In so far as the implementation and the interpretation of the Northern Ireland protocol by the European Union to date is incompatible with the principles of the Belfast/Good Friday agreement, all parties should seek to adopt a more sensible interpretation that brings it back into line with the Belfast/Good Friday agreement. That is what we are endeavouring to do.

Parties have warned for months that there will be a crisis, so no one should be surprised that there is a crisis. I am disappointed by the shadow Minister’s comments, as what he put to the Government today is not honest brokership. This is a serious crisis; it is not about parties in Downing Street.

The Secretary of State says that Minister Poots is entitled to take this advice, which told him that the checks are not lawful. Sinn Féin will not allow a discussion about this in the Executive to try to repair them and make them lawful. Minister Poots therefore has no vires to continue with the operation of the checks. If that is the case, will the Secretary of State affirm that Her Majesty’s Government will not interfere in this process? Will Her Majesty’s Government accept that they must now remove the friction between GB companies and Northern Ireland, as that is where the main problem now rests?

I would express it slightly differently, but would say this: the rationale Minister Poots has advanced is that the EU audit that took place and whose findings were published at the end of last year raised some issues that he believed were contentious and therefore potentially a threat to community relations. Therefore, in his view, part of the threshold test for authorisation to be required by the Northern Ireland Executive has been met. He therefore believes that there should be a discussion; to date, under the power-sharing agreement there has not been agreement that it should be discussed, and that has led to the current state of affairs. So it is too early to say what the legal position is. I know it is the position of Edwin Poots that it is not lawful to continue these checks without the express authority of the Northern Ireland Executive. Others may take a different view, but the UK Government very much hope the Northern Ireland Executive can find a resolution to this, and for our part, as the ones who stand behind the Belfast/Good Friday agreement and are responsible for it and for protecting it, and as the ones who are responsible for international negotiations, we will continue to endeavour through the negotiations with the EU to find an enduring solution.

My right hon. Friend rightly characterises this as a devolved matter, and the Government, far from making a U-turn, have been very clear and consistent about it. However, the international law dimension of this and the obligations of the United Kingdom Government are also very clear. Would it not have been better for the Minister in the Northern Ireland Executive to have told my right hon. Friend before he decided to make this directive because of the obvious sensitivities and the vital importance of allowing my right hon. Friend the Foreign Secretary to conduct her negotiations with Commissioner Šefčovič in as smooth and unimpeded a way as possible? We will deal with this through negotiation and resolution at international level, and therefore we need to avoid the elephant traps that unilateral action presents.

My right hon. and learned Friend knows from experience that the UK Government have considerable patience for negotiation in order to reach agreement and sensible pragmatic settlements in these areas. He is absolutely right that we seek and would prefer a negotiated reform of the way the protocol is interpreted, and that is what my right hon. Friend the Foreign Secretary is working on, but I hope I have given an explanation on a number of occasions now about the perspective that Edwin Poots brings to this and why he has acted in the way that he has. I hope my right hon. and learned Friend will also understand that there is a difference between things we are responsible for in international law and things a devolved Administration are responsible for implementing under the devolved devolution settlement that we have.

It should be a cause of great sadness to all that the act of leaving the EU continues to cause such business and political instability in Northern Ireland. I have listened very carefully to what the Secretary of State had to say and think he was arguing that, while it may indeed be the case that the administration of SPS checks is a matter for the Northern Ireland Executive, the legal obligation under the withdrawal agreement and Northern Ireland protocol to ensure checks are done falls upon the UK Government. So, if the checks do stop, do the Government intend to use their powers under section 26 of the Northern Ireland Act 1998? He talked about a high bar; may I briefly read to him what it says?

“If the Secretary of State considers that any action proposed to be taken by a Minister or Northern Ireland department would be incompatible with any international obligations…he may by order direct that the proposed action shall not be taken.”

Of course the Secretary of State may direct, as the right hon. Gentleman points out, but for all the reasons I have given—for all the reasons that we understand—the bar for using such reserve powers is high. At the moment, checks are continuing. There is no breach, and the Government judge that at this stage, the right thing to do is appeal to the power-sharing Executive in Northern Ireland to find a way through this.

As someone with a large Northern Irish population in Wolverhampton, and being half Northern Irish myself, I have grave concerns about the constitutional crisis that the protocol is causing. Will the Secretary of State commit to urgently reviewing this, to come to a solution that will fully restore and maintain Northern Ireland’s position in our Union? Does he also agree that a Labour solution that would align us back with the EU regulations is absolutely unacceptable?