During last week’s Second Reading debate on the Internal Market Bill I made it clear that I support the general aims of the Bill and much of its content are necessary to ensure that the competences that return to the UK from the EU are put into UK law. You can watch my speech from the debate here.
However, I set out my very serious concerns about Part 5 of this Bill and the effect of these provisions on our international reputation, the Rule of Law and Northern Ireland.
The unique issues relating to and resulting from Northern Ireland’s regulatory status have bedevilled the process of negotiating an exit from the European Union from the very start.
Some level of bureaucracy for trade between Northern Ireland and Great Britain was and is the foreseeable and normal result of the Withdrawal Agreement. This point was highlighted at the time but was justified as a compromise to move onto the next phase and preserve peace in Northern Ireland. Furthermore, at the time we were assured that technology would ensure that any checks would be as quick and simple as possible.
The Withdrawal Agreement and Northern Ireland Protocol, and the consequent effects on trade to Northern Ireland, were negotiated by this Government, part of our election manifesto, approved by this Parliament and subsequently signed by this Government, all in the last 12 months.
If the Government believe that the EU are acting in bad faith, making threats to food supplies or critically affecting the integrity of the UK, then there are agreed mechanisms in the Withdrawal Agreement to deal with this. For example, if the Government believe that we will not be able to import food into Northern Ireland, Article 16 of the protocol specifically allows the UK to act at the point where such an issue factually materialises.
The United Kingdom has a proud record of upholding the rule of law and being a trusted international partner. This country cannot, and does not, break international law just because it does not like the compromise it has signed up to. Our international standing and future ability to negotiate treaties and trade deals will be severely damaged if we undermine our commitment to the Rule of Law. Some say this is justified is to preserve the Good Friday Peace Agreement, yet when the two architects of that Agreement state that these provisions imperil rather than protect that peace, we must take that view seriously.
For that reason, I was not able to vote for the Bill. However, I did not vote against the Bill as the majority of the Bill is sensible and necessary and the only realistic way to solve the issues regarding International Law is for the Bill to go onto the next stage in Parliament and for it to be amended.
I signed Sir Bob Neill’s amendment to the Bill which would ensure that Clauses 42, 45 and 45 of the Bill do not come into force unless this is approved by resolution of the House of Commons.
This would mean that the Ministers could not use the powers in Clauses 42 and 43, which could be used to breach International Law, until the House of Commons votes to commence those clauses.
Furthermore, as I pointed out in my speech, unamended this Bill would breach Article 4(1) of the Withdrawal Agreement and at the moment of Royal Assent, even if the Ministerial powers in Part 5 were not used through Clause 45 (2)(b).
Similarly, the provisions of Clause 45, which would breach Article 4(1) of the Withdrawal Agreement, would not come into force until expressly commenced by the House of Commons. This amendment would mean Clause 45, and the consequent changes in domestic law, do not come into force at Royal Assent and will not until expressly approved by the House of Commons.
In seeking to use any of these provisions, a Minister would have to explain before the House of Commons specifically why the Government believe is necessary at that time and be scrutinised. It is only right that the use of such exceptional powers, in such exceptional circumstances, should have a direct democratic mandate from the House of Commons. This is the same principle behind my votes to secure a Parliamentary approval of the Withdrawal Agreement. I will scrutinise extremely carefully any such request from the Government and will use my vote to ensure the UK does not break International Law.
I am pleased the Government have accepted these arguments and have tabled an amendment to Part 5 of the United Kingdom Internal Market Bill to the same effect. The Government have also tabled an amendment which restricts any judicial review of the use of the powers in Clauses 42 or 43 to the usual 3-month limit.
In my speech, I argued that these powers should only be used as a final resort, if the EU had breached its obligations in the Withdrawal Agreement, alongside the dispute mechanism process. The Government have now set out the limited circumstances in which it will seek to use these powers, and that it would always activate appropriate formal dispute settlement mechanisms with the aim of finding a solution through this route. The Government will ask the House of Commons to commence these clauses if the EU is engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol. You can find the Government’s full statement on this below.
I understand that some would wish to go further and remove Part 5 from the Bill entirely. I am sympathetic to this argument and this is something I considered. However, there is simply not the support in the House of Commons for this and so I supported the principle behind the Neill amendment, which had a realistic chance of success. The risk of sacrificing any prospect of improving this Bill by focussing on something that is very unlikely to happen, was not one I was willing to take.
Finally, as ever, the best way to avoid No Deal is to agree a Deal. The priority must remain to agree a good deal with the European Union. I hope that now the rhetoric is cooling both sides can refocus on negotiations, and if a deal is done the provisions in Part 5 of this Bill will not be necessary.
Government statement on notwithstanding clauses
Published 17 September 2020
HMG will ask Parliament to support the use of the provisions in Clauses 42, 43 and 45 of the UKIM Bill, and any similar subsequent provisions, only in the case of, in our view, the EU being engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol. Examples of such behaviour would include:
a. insistence that GB-NI tariffs and related provision such as import VAT should be charged in ways that are not related to the real risk of goods entering the EU single market;
b. such insistence under (a.) leading to a failure to reach agreement in the Joint Committee, with the result that the default provisions on tariffs between GB and NI apply;
c. insistence on paperwork requirements (export declarations) for NI goods going to GB, thereby compromising the principle of “unfettered access” in Article 6 of the Protocol;
d. insistence that the EU’s state aid provisions should apply in GB in circumstances when there is no link or only a trivial one to commercial operations taking place in NI; and
e. refusal to grant 3rd country listing to UK agricultural goods for manifestly unreasonable or poorly justified reasons.
HMG confirms that in parallel with the use of these provisions it would always activate appropriate formal dispute settlement mechanisms with the aim of finding a solution through this route.
Further measures will be set out in the Finance Bill, relating to tariffs on GB-NI movements, including the same Parliamentary process that the Government has committed to for the UKIM Bill.