[Relevant document: Oral evidence taken before the Northern Ireland Affairs Committee on 29 June 2022, on Brexit and the Northern Ireland Protocol, HC 285.]
[Dame Eleanor Laing in the Chair]
Clause 13
Implementation, application, supervision and enforcement of the Protocol
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.
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.
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.
My hon. Friend is making an excellent speech. I have just one point to add. Does he agree that there is a certain irony in the fact that probably large numbers of the 52% who voted for Brexit voted to strengthen, solidify and consolidate parliamentary sovereignty, but these Henry VIII powers are strengthening the hand of Government and weakening the hand of Parliament? Does not that seem to run directly counter to what many people who voted for Brexit were voting for?
I completely agree with my hon. Friend. Indeed the Bill not only takes powers away from this place, but takes on powers without the consent of the Northern Ireland Assembly.
Further to that point, I do not understand why the official Opposition don’t get it. There is a democratic deficit as a result of the Northern Ireland protocol. The hon. Member bemoans the fact that Parliament might lose some powers to the Government, but in Northern Ireland we today are faced with the imposition of regulations—hundreds and hundreds of them—over which neither Parliament nor the Government have any say, nor the Northern Ireland Assembly or Executive, yet I hear nothing from the Opposition Benches about that democratic deficit. At least the Government are attempting to address it. What do the official Opposition intend to do about it?
I always listen with great respect to the right hon. Gentleman. He talks about a democratic deficit. The Government, of course, negotiated the protocol. He has been consistent in his criticisms of it. The Government knew that when they negotiated it. They knew there were issues that needed to be addressed. It seems to me very odd that the Government are proposing to take a huge amount of powers that would have no scrutiny in this place and no scrutiny in Northern Ireland.
We hear a lot about the egregious use of powers and regulations being imposed, but we hear very little about what specific powers people do not want to have. I think they are about the volume of lawnmowers and other such crucial things. Does the hon. Gentleman agree that it is more damaging to democracy to withhold the Northern Ireland Assembly, in which elected Members are supposed to address wider issues around health, education, the economy and everyday issues for Northern Ireland? The Assembly being withheld creates a far wider democratic deficit.
Indeed. The point I have made is that the powers the Government are taking remove responsibilities from the Northern Ireland Assembly. We want all communities to have a say on matters that affect them going forward. I am sure we will come on to a number of those amendments in due course.
In the same vein, we would support amendment 12, which relates to clause 18, tabled in the name of my right hon. Friend the Member for Leeds Central (Hilary Benn), were he to press it to a Division. As the Hansard Society points out, clause 18 would give Ministers the power to “engage in conduct” relevant to the Northern Ireland protocol if they consider it—again this word—“appropriate” in connection with one or more of the purposes of the Bill. However, the Bill provides no elaboration on what type of activities that “conduct” could involve. Nor have the Government given a justification for why the additional power is needed. Indeed, the former head of the Government Legal Service, Sir Jonathan Jones QC, someone who has said a lot about the legality of the Bill, described this as a
“do whatever you like power”.
Given that the Government can provide no assurances on what types of “conduct” the power will be restricted to and that we have no justification for why it is even needed, this is not something we can support. That is why we support amendment 12, tabled by my right hon. Friend. The Government are in no position to expand their powers to such a degree, particularly in areas so sensitive. Not only are they a gross overreach of power, but they are also disrespectful to the constitutional role of this House.
I turn to some of the amendments that have been tabled. Labour has been clear, since the Bill was first introduced, that the way to solve the problems before us is to negotiate, and to do so in good faith. We recognise that the operation of the protocol has created genuine tensions that need to be addressed, but that is best done by all sides listening to each other and acting in good faith, and with the Belfast/Good Friday agreement at the heart of those discussions. I contend that the Bill simply does not do that. It is not an act of good faith for Westminster to unilaterally impose a solution, not least across Northern Ireland, and nor, tragically, will the solution proposed achieve its ultimate objectives. Only an agreement which delivers for the people and businesses of Northern Ireland, and respects the wishes of those on all sides and all communities, will provide a long-term and sustainable solution to this problem. That is why we support amendment 49, which references the fourth point in the protocol and the importance of protecting the Belfast/Good Friday agreement in all its parts, if it were to be pressed to a Division. Unilateralism is not the way forward on matters of such sensitivity.
Allow me, Dame Eleanor, for I think the penultimate time, to thank hon. Members who have spoken in Committee. I would like to turn to the clauses under discussion in this debate. With the leave of the Committee, I will deal with some of the amendments very briefly.
Clause 13 outlines the exclusions that seek to redress the feeling that there is a democratic deficit created by the arrangements for the implementation and enforcement of the protocol. The present role of the Court of Justice of the European Union clearly causes Unionists to feel less connected to, and part of, the United Kingdom. That was reflected in the September 2021 joint statement by all Unionist parties on the protocol. Clause 13 provides that any provision of the protocol that confers jurisdiction on the CJEU over arrangements in Northern Ireland is excluded provision. That means that CJEU decisions, including infractions, will no longer have effect in domestic law across the entire protocol.
I confirm to the Committee that the Bill does not disapply the withdrawal agreement’s arbitration process, which would be convened at the international level in the event of a dispute. It simply affirms that the arbitration provisions in the withdrawal agreement do not have effect in our domestic law, and that is normal for international treaties. It then helps to restore the UK Government’s sole oversight of arrangements on the ground in Northern Ireland, providing that the provisions relating to the powers and presence of EU representatives are excluded. Finally, via subsections (4) and (5), clause 13 allows for the establishment of new arrangements for co-operation with EU authorities to monitor the trade boundary regime, and enables us to implement robust data sharing on the operation of the trusted trader scheme and on all goods moving between Great Britain and Northern Ireland. That will support assurance processes to uphold our commitment to protect both the UK internal market and the EU’s single market.
Stephen Farry (North Down) (Alliance)
Will the Minister give way?
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“(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.
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.
I do not want to detain the Committee further at this stage. We have many amendments to get through today. To conclude, Labour’s amendments will prevent handing the Government overreaching powers that they are simply not fit to hold. Our amendments will protect the much-valued scrutinising and functioning of this House, and give a voice in this hugely delicate and important process to the people of Northern Ireland.
Clause 14 supports the coherent functioning of the Bill by fully insulating any excluded provision from being brought back into our domestic law as a result of obligations arising from other provisions of the protocol and withdrawal agreement. If needs be, regulations under subsection (4) can be used to make appropriate provision in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The clause provides important clarity on the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement related to it.
Clause 18 provides a power for a Minister to engage in non-legislative conduct where they consider it appropriate in connection with one or more of the purposes in the Bill. The clause also clarifies the relationship between powers to make secondary legislation under the Bill and those arising by virtue of the royal prerogative. The clause will ensure that actions not requiring legislation, such as issuing guidance to industry or providing direction to officials, can be taken in a timely manner by a Minister of the Crown. It is not, as I think has been misconstrued in some quarters, an extraordinary power. It simply makes clear, as would normally be taken for granted, that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation.
Clause 20 allows for the proper functioning of domestic court proceedings following the removal of the domestic effect of CJEU jurisdiction. That means that domestic courts would no longer be bound by CJEU principles or decisions when considering matters relating to the protocol. The clause provides a power to make related new provision. Regulations made under the power could, for example, provide for a procedure to refer questions of interpretation of EU law to the CJEU if a domestic court considered it necessary to conclude its proceedings.