The Government fully intends to respect its international agreements and will continue to negotiate in good faith with the EU. We are very much focussed on reaching an agreement with our EU neighbours and will work hard to ensure this. However, it is right that we have a contingency plan in place, through the Internal Markets Bill, if the negotiations break down.
The Government’s first priority is ensuring peace, security and good governance, so we have proposed reasonable steps to create a safety net so that we can deliver on our commitments under the Belfast/Good Friday Agreement to ensure peace in Northern Ireland. With the end of the transition period fast approaching, there are no guarantees that the Joint Committee – established to iron out inconsistencies in the terms of the Protocol – will reach agreement on all outstanding issues before the clock runs down. Talks are ongoing but this safety net is an essential mechanism to ensure we can always stay true to our commitments to the people of Northern Ireland.
Our manifesto pledged that: ‘We will ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK and that in the implementation of our Brexit deal, we maintain and strengthen the integrity and smooth operation of our internal market.’ The Northern Ireland Protocol was the product of compromise, and as a result there are provisions which cut across one another, but there is one consistent thread: that both parties recognise the overarching importance of the Belfast/Good Friday Agreement.
Article 1 affirms that nothing in the Protocol should interfere with the provisions of the Belfast/Good Friday Agreement which confirm Northern Ireland’s constitutional status as part of the UK. The text is also explicit in recognising ‘the importance of maintaining the integral place of Northern Ireland in the United Kingdom’s internal market’. Article 4 guarantees Northern Ireland’s place in the UK’s customs territory, while Article 6 guarantees unfettered access for goods moving from Northern Ireland to Great Britain.
However, there are provisions of the Protocol that run against the grain. Despite Article 4 upholding Northern Ireland’s place in the UK customs territory, unless we can come to a reasonable decision in the Joint Committee, under Article 5, all goods moved from Great Britain to Northern Ireland will be assumed to be at risk of re-export to the EU, and liable to pay full EU tariffs. So the default under Article 5 – which will be the automatic result if the EU ‘sit on their hands’ – would totally nullify Article 4, and set up barriers between Northern Ireland and the rest of the United Kingdom.
Separating Northern Ireland and Great Britain in this way cannot have been the intention of the parties – and it is something that no UK Prime Minister could stand for. The references to the Belfast/Good Friday Agreement in the Protocol were not just for show. Anyone who knows the history of the peace process would know immediately that any border between Northern Ireland and the rest of the UK is completely incompatible with that Agreement. Having no ‘hard’ border in the Irish Sea is just as important as having no ‘hard’ border on the island of Ireland.
When the UK signed the Protocol we had hoped these contradictions would be resolved in the Joint Committee. We were willing to sign based on the good faith of the EU. However, that hope now has to be tempered with the reality that the Joint Committee may come to a very unfavourable decision, or indeed come to no decision – in which case we will be powerless to top these damaging defaults kicking in. Therefore this Bill allows is to take action to plan for the eventuality that no agreement is forthcoming, or the EU fail to negotiate in good faith.
I also want to take this opportunity to clear up some misconceptions that have emerged. It is not novel or unprecedented for Parliament, or indeed other like-minded governments, to consider legislation that has the potential to override treaty obligations. Whether, and how, to implement our treaty obligations is for Parliament and Parliament alone: a conclusion backed up by parliamentary supremacy – the bedrock of our constitution – and the UK’s ‘dualist’ system which separates domestic and international law. This principle was upheld unanimously by the Supreme Court in the Miller case in 2017, and was expressly confirmed in Section 38 of the EU Withdrawal Agreement Act 2020. It comes down to being honest with Parliament, and the British people, about what we are doing and why it is necessary. It goes without saying that we are committed to the rule of law, as determined by our democratically elected Parliament.
I am aware that the European Commission has begun formal infringement proceedings against the UK. This began with a letter of formal notice requesting further information from the Government sent on 1 October. The Commission has requested that the Government respond within 1 month. Although I understand why the European Commission has felt compelled to issue the letter, it is important to understand that the Government’s actions do not prevent it from complying with its commitments under the Withdrawal Agreement. The Bill simply provides a safety net to ensure that harmful defaults, which neither the UK nor the EU intended, do not occur. If the UK were to take no action, the defaults could undermine the peace process on the island of Ireland and harm the integrity of the UK.
Furthermore, such formal notices are not uncommon, the EU had 800 pending infringement proceedings open in December 2019, with an average of 29 per member state. Countries including Spain, Italy and Germany incurred the highest number of proceedings against them with 57, 49 and 47 pending cases respectively.
Nothing in the Internal Market Bill undermines the Belfast/Good Friday Agreement in any way, and there is no possibility of a hard border between Northern Ireland and Ireland under any circumstances.