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Northern Ireland Border

Volume 708: debated on Thursday 3 February 2022

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?

Last year, the Secretary of State wrote to the Northern Ireland Executive to instruct them that work on border control posts must progress “without delay”. He used his powers to do so. The same principles stand today—the same Stormont Minister, the same Conservative Environment Secretary, the same Prime Minister’s deal—but there is a completely different interpretation of parliamentary sovereignty and Government responsibility. That is a total U-turn. Can the Secretary of State tell us what has changed in the Government’s position between now and then?

The situation puts civil servants and council workers in an impossible position. We are already hearing of confusion at ports. Right now, business groups are disagreeing with the Government’s stance. Yesterday, Manufacturing Northern Ireland said:

“Regardless of events, the legal and administrative advice is that these are international obligations on traders and they should continue to meet those obligations whether or not there’s a guy with a hi-vis to greet them at the Port.”

Does the Secretary of State agree with that statement and, therefore, encourage businesses to adhere to the protocol terms? They need a definitive answer.

The Labour party acknowledges issues with the protocol, which is why we fought for a better deal in the first place. There has been positive movement on how it works in the last year and concessions have been made by both sides. Progress has been achieved and more is within reach, but the Government must do more. Can the Secretary of State give us an update on progress with the veterinary partnership agreement?

As the Opposition have acknowledged many times in this House, peace in Northern Ireland is fragile and has been hard-won. Successive Prime Ministers, including John Major, Tony Blair and Gordon Brown, all secured progress by being the honest broker that the people of Northern Ireland need. The current one, however, is setting us back by exacerbating divisions and damaging the Union.

Because of the Government’s actions, people across the UK face a cost of living nightmare. On top of that, we are being plunged back into the Brexit quagmire totally unnecessarily. The Labour party would diligently negotiate a position where people and businesses across the United Kingdom can focus on future opportunities, freeing us from Tory failures that do nothing more than trap us in the battles of the past.

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 present.

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?

My hon. Friend makes an incredibly important point. The Government stand absolutely full square behind the Belfast/Good Friday agreement, which is built on the principle of consent within the communities in Northern Ireland. It respects the role of Northern Ireland within the UK and the importance of unfettered trade between GB and Northern Ireland as a component part of the UK, and I assure my hon. Friend that the Government are absolutely committed to finding a solution. That is why my right hon. Friend the Foreign Secretary continues to endeavour to get a sensible resolution to this issue.

The protocol exists due to the choices made by this Government about the nature of Brexit, and in order to protect the very particular circumstances faced in Northern Ireland. I want to make it very clear that it is already the policy of the devolved Executive from May 2020 that the checks be implemented, and the legal adviser to the Executive is the current Attorney General, not the former Attorney General. Does the Secretary of State agree that we need to find long-term, sustainable and legal pragmatic solutions to the issues with SPS, and also with customs? If we are asking the European Union to subcontract more and more functions around the marginal checks to the UK authorities, trust is essential, and anything that undermines trust is entirely counter-productive.

As the hon. Gentleman will know, the Northern Ireland protocol had a number of requirements, including that there should not be unnecessary checks on goods going from GB to Northern Ireland, ensuring that that trade could continue, and ensuring that the principles of the Belfast/Good Friday agreement in all its dimensions were respected. That is why the UK Government are seeking some changes and modifications to the way in which it is interpreted. Finally, it is not for the European Commission to unilaterally interpret what the Northern Ireland protocol means: its interpretation must be bilaterally agreed.

Two years on from Brexit and seven months on from the Command Paper, which made it clear that there were sufficient requirements for article 16 to be triggered, with continued disruption to trade between Great Britain and Northern Ireland and with completely unnecessary checks, does the Secretary of State share my hope that the action taken today in Northern Ireland might be the wake-up call that the European Union needs to finally realise that the protocol is undermining the Belfast/Good Friday agreement, and that it should negotiate its replacement sooner rather than later?

We have consistently made clear through our negotiations with the European Union that the UK Government are motivated on this issue solely by our defence of the Belfast/Good Friday agreement. It is because we want to stand behind it and protect the peace that the Belfast/Good Friday agreement has brought that we seek the changes to the Northern Ireland protocol.

The author of this present problem is the Prime Minister. At a time when Northern Ireland is looming into a real crisis, not simply because of the actions of Edwin Poots but because of the threat to collapse the Northern Ireland Executive, it is incumbent on the Prime Minister to be engaged, and it is disappointing that he is not. Will the Secretary of State undertake to go back and say to the Prime Minister that it is time for him to demonstrate real determination to sort out the overall problem of the protocol?

I can assure the hon. Gentleman that the Prime Minister is absolutely engaged in these issues, as are the Northern Ireland Secretary and the Foreign Secretary. Those of us who were in the last Parliament can all recall that finding a resolution to this particular challenge around trade between GB and Northern Ireland was a difficult problem to solve. The Northern Ireland protocol had a solution, but it required both parties to continue to work through certain details to make it work in practice, and that is what we have been doing.

Following on from what the Secretary of State has just said, is it not extraordinary that 20% of the checks that the EU has with third countries are between Great Britain and Northern Ireland? It is even more crazy, because the vast majority of those goods are circulating within the UK single market. Will he give the House an assurance that he will always put the interests of Northern Ireland above the interests of the EU?

Through the Joint Committee process and the negotiations led by the then Chancellor of the Duchy of Lancaster, my right hon. Friend the Member for Surrey Heath (Michael Gove), we secured easements for the major retailers in particular, and other arrangements that set aside the requirement for export health certificates until a more durable solution could be found. It is the case, as my hon. Friend the Member for Wellingborough (Mr Bone) says, that the European Union has a very legalistic approach to the proportion of goods that it inspects, which bears no resemblance whatsoever to the degree of risk. The UK Government think that there is no sense in such an approach, and our own future border arrangements will be based on a calibrated assessment of risk, not on an arbitrary percentage figure plucked out of the sky.

I am sure the Minister is aware that the Good Friday agreement, which has been much referred to here today, rests upon the principle of consent, and that controversial issues therefore have to be dealt with on a cross-party basis. That was embodied in the law that set up the Assembly; the Northern Ireland Act 1998 requires that to happen, but it has not happened in this case. The Minister will also be aware that it has not happened in relation to the border posts, which have not been built yet because consent could not be achieved, and that it has not been implemented in relation to the charging of lorries coming through those border posts, because there was no consent on that either. This principle is well established, so instead of listening to the EU cheerleaders in the Labour party, the Alliance party and the Social Democratic and Labour party who want full implementation of this damaging Northern Ireland protocol, would the Secretary of State agree that the real responsibility lies with the EU to stop using Northern Ireland as a whipping boy for the UK leaving the EU, and to treat us with the respect we deserve as a part of the United Kingdom?

As I said earlier, Minister Poots gave me a similar description of the requirements of consent, and his understanding is that this issue should have been discussed and agreed by the Northern Ireland Executive. On the right hon. Gentleman’s wider points, although I would express them rather differently, I have not been known for listening to EU cheerleaders during my political career.

The DUP is executing a series of reckless stunts today to try to regain some political memorandum and distract from the terrible mess that it has made, but removing officials and collapsing the Executive solves nothing. It damages trust, it undermines the culture of lawfulness that many of us are trying to foster and it risks vital legislation on climate, education and many other things that have been left hanging since the last governance black hole. I believe that it will also prevent the Executive from spending the money announced in this Chamber today to mitigate rising fuel prices. It is very disturbing that the UK Government seem content to shrug their shoulders and collude with this. What is the Minister’s clear message to businesses today, including those large retailers that are sending goods into Northern Ireland? Is it that they should continue to follow the legally mandated rules as outlined in the trade and co-operation agreement and the protocol, or should they collude with this stunt and undermine international law?

On the latter point, the legal obligations that exist apply to the relevant authorities, whether that is the UK Government or indeed the Northern Ireland Executive, so businesses should continue as normal. There is no legal liability to businesses for continuing to trade with Northern Ireland under any circumstances. On the former point, I hope that I have made it clear in everything I have said that the UK Government hope that the Northern Ireland Executive will continue and that they will pull together and find a resolution to this problem. That is the right thing to do.

This is really the most farcical of situations among a number of farcical situations. It seems to me that what the Minister is saying here today is that everything is as was and as normal and traders can continue. Mr Poots seems to have lawyers; I wonder whether the Government’s lawyers are involved in any of this. It seems to me that the Government are involved in wishful thinking, following on from the question asked by my right hon. Friend the Member for Leeds Central (Hilary Benn) about what happens next. Can the Minister tell us what is plan B?

I am here to give the House an update on the current situation, which I am doing in all the detail that I am able to. If events change, I am sure there will be an opportunity to have to further such exchanges.

I do not agree with all the points made by the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), but on one point he was correct. This is not an operational issue but a constitutional one. Can we expect a further statement from the Secretary of State for Northern Ireland on all the points raised around that matter today?

I know that my right hon. Friend the Secretary of State for Northern Ireland has been engaged in these matters over the past week or so as events have been developing. I am sure that there will be many opportunities for the Northern Ireland Office to bring such statements before the House should there be anything new to report.

Does the right hon. Gentleman agree that the people of Northern Ireland have been kept in the call waiting queue for long enough? We hear continual EU platitudes that our opinions are important, while they simply entrench further into the protocol. We are determined that now is the time for the call to be taken, for our voice to be heard, for our problems to be addressed and for justice and UK parity to be restored. Does he agree that since the EU and its government have continued to stall, there are now no options available to the people of Northern Ireland other than major steps that were a last resort and are now the only resort?

The Government have been clear throughout that, where there are legitimate grounds to use article 16 of the withdrawal agreement, we reserve our right to do so. We also, as I said earlier, have considerable patience for a negotiated outcome. Our preference is still to get that negotiated outcome. That is why my right hon. Friend the Foreign Secretary will be having further conversations this afternoon.