[Relevant Documents: First Report of the Northern Ireland Affairs Committee, Unfettered Access: Customs Arrangements in Northern Ireland after Brexit, HC 161, and the Government response, HC 783; and Oral evidence taken before the Northern Ireland Affairs Committee on 16 September 2020, on Brexit and the Northern Ireland Protocol, HC 767.]
I should explain that, in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s chair during a Committee stage, in order to comply with social distancing requirements, I will remain in the Speaker’s Chair, although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. We should be addressed as Chairs of the Committee, rather than as Deputy Speakers.
Clause 11
Modifications in connection with the Northern Ireland Protocol
Question proposed, That the clause stand part of the Bill.
Amendment 45, in clause 40, page 31, line 16, at end insert—
“(d) the need to maintain the necessary conditions for continued North-South cooperation in—
(i) the areas of environment, health, agriculture, transport, education and tourism, energy, telecommunications, broadcasting, inland fisheries, justice and security, trade and business development, higher education and sport, and
(ii) any other area that may be agreed by a body established under the provisions of the Good Friday Agreement.”
This amendment would aim to build into the Bill the need for ministers to maintain the conditions necessary for North-South co-operation in areas specified under the Good Friday Agreement.
Amendment 48, page 31, line 16, at end insert—
“(d) the need to ensure that there would be no new checks on goods moving from Northern Ireland to Ireland, and
(e) the need to ensure that there would be no new checks on goods moving from Ireland to Northern Ireland.”
This amendment would aim to require Ministers to have special regard to ensuring that there are no new checks on goods moving from Northern Ireland to Ireland or vice versa.
Amendment 41, page 31, line 16, at end insert—
“(1A) When exercising any functions covered by this Part, any appropriate authority has a paramount duty—
(a) to act without prejudice to all international and domestic law, including the Withdrawal Agreement;
(b) to address the unique circumstances on the island of Ireland;
4:47 pm
The Minister of State, Northern Ireland Office (Mr Robin Walker)
Thank you, Mr Evans. I am pleased to be opening this detailed consideration of part 5 of the Bill, which deals with matters relating to the Northern Ireland Protocol. I welcome this opportunity to discuss these provisions and the important issues they raise in depth today.
Before I turn to the specific clauses and amendments in this group, let me begin by making it clear that the Northern Ireland protocol to the withdrawal agreement is designed to recognise and protect the needs and unique circumstances of Northern Ireland. Central to that is ensuring that the Belfast/Good Friday agreement, its successor agreements, and the gains of the peace process are protected. But, above all, we must ensure that the delicate balance between all communities in Northern Ireland is maintained and that the UK Government pursue policies for sustained growth and stability in Northern Ireland. Those have always been and will remain this Government’s priorities. Through this Bill, we are acting to uphold those priorities and deliver the commitments we made in our election manifesto that we would provide unfettered access between Northern Ireland and Great Britain and
“maintain and strengthen the integrity and smooth operation of our internal market.”
The protocol also explicitly depends on the consent of the people of Northern Ireland for its continued existence. As we implement it, that must be kept in mind. Those commitments are, of course, entirely in accord with the protocol itself, which makes it clear that, among other things, Northern Ireland remains part of the United Kingdom’s customs territory, that nothing in the protocol prevents unfettered access from Northern Ireland to the rest of the UK market, and that in its application the protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland.
Will the Minister confirm that if the European Union kept its promise in the political declaration of a free trade agreement, many of the troublesome issues would drop away and all would work smoothly?
Mr Walker
My right hon. Friend is of course right about that, and we still hope to strike a free trade agreement with the EU. I also point out that these issues can and should be resolved through the Joint Committee—I will come back to that.
Both the UK and the EU signed up to the protocol on the basis I just outlined. We are committed to implementing the protocol and we have been working hard to ensure that it is done in a way that delivers the promises that have been made. That includes working with the EU to reach agreement through the Joint Committee process in a number of areas that the protocol left unresolved, and we very much hope that agreement can be reached shortly. But if it is not, the harmful legal defaults contained in some interpretations of the protocol, which were never intended to be used, would be activated. The consequences for Northern Ireland in that scenario would be very damaging. We cannot and will not run that risk.
The provisions we are considering today will therefore ensure that in any scenario, we will protect Northern Ireland’s place in the United Kingdom; ensure that businesses based in Northern Ireland have unfettered access to the rest of the United Kingdom; and ensure that there is no legal confusion or ambiguity in UK law about the interpretation of the state aid elements of the Northern Ireland protocol.
I will give way to the right hon. Gentleman in a moment, because I do intend to refer to some of his comments in my speech, and I will happily take his intervention shortly.
Further measures will be set out in the Finance Bill. These will have the same effect as those already proposed in the UKIM Bill, and will make it clear that no tariffs will be payable on goods moving from Great Britain to Northern Ireland unless those goods are destined for the EU market, or there is a genuine and substantial risk of them ending up there. We will take the necessary powers in the Finance Bill to ensure that this is defined in a reasonable and proportionate way, which ensures that legitimate traders are not penalised, while also resolving the outstanding issues relating to the payment of VAT and excise duty. So we are taking limited and reasonable steps through the legislation to create a legal safety net by taking powers in reserve, whereby Ministers can guarantee the integrity of our United Kingdom and ensure that the Government are always able to deliver on their commitments to the people of Northern Ireland in line with the three-stranded approach of the Belfast/Good Friday agreement.
I declare an interest as a member of the Ulster Farmers Union, which has contacted me, and it says:
“there will be a total amount under the NI protocol that will be a maximum we can give to agriculture in the form of support and there will be a certain percentage that we could give as coupled support.”
It clearly sees that less state aid will be available for Northern Ireland and we will be treated differently from Scotland, Wales and the rest of England. Does the Minister of State agree with that?
Mr Walker
I will come in detail to the amendment tabled by the hon. Gentleman’s party later in my speech, but I do recognise that when it comes to state aid, we have made specific agreements under the protocol on goods traded between Northern Ireland and the EU, and we should stick to those in order to ensure the effective functioning of trade north, south, east and west. We are taking steps in the Bill to clarify the state aid elements, and some of those will be to the benefit of businesses in Northern Ireland. I will come back to that point in more detail.
If I may, I will come to the right hon. Gentleman’s point very shortly, and then I will happily give way to him.
We would not take these steps lightly. We hope it will never be necessary to use these powers, and we would do so only if, in our view, the EU was engaged in a material breach of its duties of good faith or other obligations. We would, of course, always activate appropriate formal dispute resolution mechanisms with the aim of finding a solution through this route in parallel to any domestic legislation. I draw the Committee’s attention to the statement that the Government made on 17 September.
Can I ask my hon. Friend to go just a little further than he has just gone? He has explained already that the Government may end up in a position where entirely outrageous behaviour on the part of the EU might lead to a conclusion that no Government could possibly accept. Can I ask him to confirm that in those circumstances the Government would explore to the fullest all the options available to them within the withdrawal agreement before resorting to any breach of international law outside the withdrawal agreement—accepting, of course, that there would come a time when if the Government did not act unilaterally it would then be too late to do so?
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(c) to maintain the necessary conditions for continued North-South cooperation;
(d) to avoid a hard border on the island of Ireland;
(e) to protect the Belfast/Good Friday Agreement in all its dimensions.”
This amendment is intended to provide a safeguard so that any actions with respect to Part 5 of the Bill must be consistent with relevant existing international and domestic law commitments, including the terms of the Withdrawal Agreement and its Ireland/Northern Ireland Protocol.
Amendment68, page 31, line 16, at end insert—
‘(1A) Regulations that would introduce new requirements for goods traded from Great Britain to Northern Ireland may not come into force without the consent of the Northern Ireland Assembly.
(1B) No additional official or administrative costs consequent on any regulations of the kind mentioned in subsection (1A) may be recouped from the private sector.’
The intention of this amendment is to require the consent of the Northern Ireland Assembly before trade frictions are imposed on goods traded from Great Britain to Northern Ireland, and to protect Northern Ireland businesses from paying for any new administrative costs.
Amendment 67, page 31, line 26, at end insert—
“(2A) On or after IP completion day, an appropriate authority must not exercise any function in a way that would—
(a) result in an existing kind of GB-NI check, control or administrative process being used—
(i) for the first time, or
(ii) for a new purpose or to a new extent; or
(b) result in a new kind of GB-NI check, control or administrative process—
(i) being introduced, or
(ii) being used.
(2B) For the purposes of this section—
(a) a “GB-NI” check, control or administrative process is one applicable to the direct movement of goods produced in a part of the United Kingdom from Great Britain to Northern Ireland;
(b) goods are to be regarded as “produced in” a part of the United Kingdom (if not wholly produced there) if the most recent significant regulated step in their production has occurred there.”
(c) an “existing kind” of GB-NI check, control or administrative process is one that—
(i) was in use or available for use immediately before IP completion day, or
(ii) is the same as, or substantially similar to, one that was in use or available for use immediately before IP completion day (the “predecessor”);
(d) a “new kind of” GB-NI check, control or administrative process is one that is not of an existing kind;
(e) where an GB-NI check, control or administrative process is of an existing kind because of paragraph (b)(ii), that check, control or administrative process and the predecessor are to be treated as a single function for the purpose of determining whether subsection (1)(a) prevents its exercise;
(f) the purpose for which, or extent to which, a function would be used is “new” if the function has not been used for that purpose, or to that extent, before IP completion day.
(2C) A Minister of the Crown may by regulations amend this section so that it applies to a type of movement instead of, or in addition to, a type of movement to which it already applies (whether that type of movement is direct movement or another type of movement provided for by regulations under this subsection).”
The intention of this amendment is to mirror in Clause 40, in relation to the movement of goods from Great Britain to Northern Ireland, the unfettered access NI-GB provisions in Clause 41.
Clause 40 stand part.
Amendment 69, in clause 41, page 32, line 4, at end insert—
“(c) result in a new cost on an Northern Ireland business in accessing the market or in meeting conditions of sale on the market that would not exist for Great Britain businesses.”
The intention of this amendment is to make unlawful both direct costs and administrative processes and indirect costs such as labelling etc being imposed on Northern Ireland businesses after IP completion day.
Amendment 52, page 32, line 4, at end insert—
“(1A) An appropriate authority exercising any function to which this section applies must have regard to the obligations of the United Kingdom under the Withdrawal Agreement, including in particular the duty to seek resolution of disputes through the Joint Committee.”
The intention of this amendment is to confirm the process agreed in the Withdrawal Agreement as the mechanism for dispute resolution.
Government amendment 61.
Amendment 53, page 32, line 19, leave out paragraph (b).
The intention of this amendment is to omit the disapplication of international domestic law under Clause 45.
Government amendment 62.
Amendment70, page 32, line 25, after “direct” insert “or indirect”.
The intention of this amendment is to include within the definition of “NI-GB check” goods which travel indirectly (via Dublin, for example) from Northern Ireland to Great Britain.
Amendment 71, page 32, line 48, at end insert—
“(5A) Before making regulations under this section, a Minister of the Crown must consult and have regard to the views of the Northern Ireland Executive on the proposed regulations.”
The intention of this amendment is to require the Minister to consult the Northern Ireland Executive before making amending the Clause on unfettered access.
Government amendment 63.
Clause 41 stand part.
Amendment 54, in clause 42, page 33, line 40, at end insert
“, and
(c) the need to respect the rule of law.”
This amendment would require Ministers to take into account the rule of law when making regulations about exit procedures for goods moving from Northern Ireland to Great Britain.
Amendment 55, page 33, line 44, leave out subsection (5).
This amendment would remove the provision allowing international and domestic law to be disregarded when regulating exit procedures.
Clause 42 stand part.
Amendment 56, in clause 43, page 34, line 21, after “provision” insert
“while having due regard to the rule of law and human rights”.
This amendment would require the Secretary of State to respect the rule of law and human rights while making provisions under this Clause.
Amendment 57, page 34, line 23, leave out line 23.
This amendment would prevent the disapplication or modification of NI Protocol Article 10 under this Clause.
Amendment 58, page 34, line 26, leave out lines 26 to 28.
This amendment would protect, under this section about Article 10 of the Northern Ireland Protocol, persons having a right of action in respect of aid.
Amendment 59, page 34, leave out lines 41 to 44.
This amendment would stop regulations under this section about NI Protocol Article 10 having the effect that making rights, powers, liabilities, obligations, restrictions, remedies and procedures that would otherwise apply in relation to aid, would not be recognised because they are derived from international or domestic law.
Clause 43 stand part.
Amendment 60, in clause 44, page 35, line 20, at end insert—
“(1A) The Secretary of State must take into account the need to respect the rule of law in considering whether and how to comply with the requirements mentioned in subsection (1).”
This amendment would require the Secretary of State to respect the rule of law in complying with the duty to notify state aid in accordance with Article 10 of the Northern Ireland Protocol.
Clause 44 stand part.
Government amendment 64.
Amendment 31, in clause 45, page 36, line 17, at end insert—
“(3A) The meaning of “incompatible”, “inconsistent”, “incompatibility” and “inconsistency” in this Part shall be determined by regulations made by statutory instrument by the Secretary of State.
(3B) Regulations under subsection (3A) may not be made unless a draft of the regulations has been laid before Parliament and approved by resolution of the House of Commons.
(3C) Any draft of regulations laid before Parliament under subsection (3B) must be accompanied by an impact assessment of Her Majesty’s Government’s obligations under international law on Part 5 of this Act.”
This amendment would require the definition of incompatible, inconsistent, incompatibility and inconsistency to be determined only after an impact assessment of the UK Government’s obligations under international law has been carried out (see Amendment 32).
Amendment 42, page 36, line 17, at end insert—
“(3A) If no agreement has been reached before IP completion day between the EU and the United Kingdom on the free movement of goods in both directions between Northern Ireland and the rest of the United Kingdom, a Minister of the Crown may lay before each House of Parliament a unilateral interpretative declaration, applicable to the Protocol on Ireland/Northern Ireland, setting out how interruption of the free movement of goods between Northern Ireland and the rest of the United Kingdom would not be in accord with the Protocol.”
The purpose of this amendment would be for the Government to utilise a unilateral interpretative declaration in order to preserve free movement of goods between Northern Ireland and the rest of the UK without tariffs or controls in the event of no deal.
Amendment 32, page 36, line 18, at end insert—
““incompatible”, “inconsistent”, “incompatibility” and “inconsistency” have the meaning given in accordance with subsection (3A);”
This amendment would require the definition of incompatible, inconsistent, incompatibility and inconsistency to be determined only after an impact assessment of the UK Government’s obligations under international law has been carried out (see Amendment 31).
Government amendment 65.
Amendment 46, page 36, leave out line 20.
This amendment would aim to put in place an understanding that each section of the Act should be compatible or consistent with the Northern Ireland Protocol.
Amendment 43, page 36, line 27, leave out “whatsoever” and insert
“other than the Human Rights Act 1998 and the European Convention on Human Rights”
This amendment excepts the Human Rights Act 1998 and the European Convention on Human Rights from the definition of “relevant domestic and international law.”
Amendment 44, page 36, line 28, at end insert
“other than the High Court, Upper Tribunal or Court of Session when considering an application for judicial review.”
This amendment seeks to make it clear that nothing in Clause 45 ousts the jurisdiction of domestic courts in respect of judicial review of regulations made under Clauses 42 and 43.
Amendment 47, page 36, line 28, insert —
‘(none) “but excludes any provision of—
(a) the European Convention on Human Rights,
(b) the Human Rights Act 1998,
(c) the Northern Ireland Act 1998, or
(d) the Northern Ireland (St Andrews Agreement) Act 2006.”’
This amendment would aim to put in place an understanding that each section of the Act should be compatible or consistent with the legislation specified.
Clause 45 stand part.
Clause 50 stand part.
New clause 6—Duty to seek free movement of goods from Northern Ireland to Great Britain—
Ministers of the Crown must use their best endeavours to seek through the Joint Committee (established in the Withdrawal Agreement) the disapplication of export declarations and other exit procedures for goods of Northern Ireland moving to Great Britain, in a manner consistent with the terms of the Withdrawal Agreement and other international obligations.”
This new clause, while recognising that under the Withdrawal Agreement export declarations and exit procedures fall under the ambit of the EU Customs Code, would mandate the UK Government to use its endeavours to achieve a waiver for Northern Ireland origin goods moving to Great Britain.
New clause 7—Compatibility—
No power under this Act may be exercised by an appropriate authority unless the exercise (or purpose of the exercise) would be compatible and consistent with—
(a) the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom and the Government of Ireland and the other participants in the multi-party negotiations, which is annexed to the British-Irish Agreement of the same date, or
(b) any domestic legislation or subsequent agreement implementing the Agreement.”
This new clause would aim to ensure that powers could not be used under the Bill if they were incompatible or inconsistent with the Good Friday Agreement or its associated documents.
Amendment 78, in clause 10, page 7, line 17, at end, insert—
‘(2A) In making these regulations, the Secretary of State must have special regard to the need to maintain the integral place of Northern Ireland in the United Kingdom internal market.’
The intention of this amendment is to ensure that further exclusions from the application of the access principles have regard to safeguarding unfettered access of NI businesses to the UK Internal Market.
Amendment 79, in schedule 1, page 44, line 40, at end, insert—
“(6A) In the case that there is one REACH authorisation process for Great Britain, an authorisation that is lawful for the Northern Ireland market will be valid for the Great Britain market.”
The intention of this amendment is to apply the non-discrimination principle to the REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) regime.
Amendment 4, in clause 54, page 41, line 24,at end insert—
“(2A) The relevant sections of this Act come into force in accordance only if—
(a) a Minister of the Crown has moved a motion in the House of Commons specifying on which date a relevant section comes into force, and
(b) that motion is approved by resolution of the House of Commons.
(2B) The relevant sections for the purposes of subsection (2A) are sections 42, 43 and 45.”
This amendment would prevent any of sections 42 (Power to disapply or modify export declarations and other exit procedures), 43 (Regulations about Article 10 of the Northern Ireland Protocol) and 45 (Further provision related to sections 42 and 43 etc) coming into force before the House of Commons had approved by resolution the date from which they would take effect.
Government amendment 66.
Everyone will know that the call list is very well subscribed, so may I ask at this stage that those taking part show some self-discipline as to the length of contributions made, so that as many Members as possible may be able to participate in this part of the Committee?