With this it will be convenient to discuss the following:
Amendment 26, page 1, line 3, at end insert—
“(za) requires Ministers of the Crown to set out a legal justification for altering the effect of the Northern Ireland Protocol in domestic law”
This is a paving amendment for NC8.
Amendment 31, page 1, line 4, leave out paragraphs (a) and (b).
Amendment 32, page 1, line 14, leave out from “Protocol” to end of line 15.
Amendment 5, page 1, line 15, at end insert—
“(e) provides powers to Ministers of the Crown that may be exercised only after good faith negotiations with the EU (through the mechanisms provided for in the Northern Ireland Protocol) have been exhausted and only with the approval of both Houses of Parliament and, where relevant, the consent of the Northern Ireland Assembly.”
This amendment would give primacy to a negotiated outcome between the UK and the EU and reflect the consent required by both Houses of Parliament and, where relevant, the Northern Ireland Assembly for powers conferred by the Act to be exercised.
Clause stand part.
Amendment 25, in clause 2, page 1, line 17, at end insert—
“(A1) This section is subject to section (Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly).”
This paving amendment is linked to NC7.
Clause 2 stand part.
Clause 3 stand part.
Amendment 6, in clause 15, page 8, line 47, at end insert—
“(1A) In this section “necessary” means the existence of a situation of grave and imminent peril that relates to one or more of the permitted purposes.”
This amendment defines the standard against which a Minister can exercise powers conferred by clause 15.
Amendment 14, page 8, line 47, at end insert—
“(1A) In this section “unpermitted consequence” means an outcome that would constitute a risk to or detrimental on—
(a) Strand Two of the Belfast Agreement including the North-South Ministerial Council, cooperation and action under the Council or consultation and agreements in all its formats, areas of cooperation and agreed implementation bodies;
(b) Strand Three of the Belfast Agreement, the British-Irish Council and cooperation, common policies or common actions on matters of mutual interest for relevant administrations including on issues, and in ways, referenced in that section of the Agreement;
(c) the single electricity market;
(d) Northern Ireland‘s access to the EU Single Market to the fullest extent permitted by the Protocol;
(e) continuing opportunities for institutions, economic operators and civic interests in Northern Ireland to access and participate in EU programmes and frameworks as permitted under and/or alongside the Protocol;
(f) Northern Ireland‘s access to trade deals between the EU and third countries to the fullest extent permitted by the Protocol;
(g) the productivity of businesses in Northern Ireland and the competitive marketability of goods produced there (through costs or complications associated with possible dual route regulatory compliances).”
This amendment provides that a Minister cannot exercise powers for the permitted purposes in Clause 15 in terms that could entail harmful impact on dimensions of the Good Friday Agreement and/or economic interests of Northern Ireland.
Amendment 27, page 8, line 47, at end insert—
“(1A) But subsection (1) is subject to section (Excluded provision: Parliamentary approval).”
This is a paving amendment for NC9.
Amendment 7, page 9, line 8, after “if” insert
“it does not cause one or more unpermitted consequence and if”.
Amendment 8, page 9, line 15, at end insert—
“(d) Article 18 (Democratic Consent in Northern Ireland)”.
This amendment adds Article 18 (Democratic Consent in Northern Ireland) of the Northern Ireland Protocol to the list of articles that a Minister of the Crown cannot exercise powers conferred by subsection (2) to provide cease to have effect in the United Kingdom to any extent.
Amendment 9, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) until and unless the Minister has laid a report before both Houses of Parliament setting out the Minister of the Crown’s assessment of the necessity to exercise the power for, or in connection with, one or more of the permitted purposes and to state the one or more permitted purposes in question.”
This amendment places a reporting obligation on a Minister exercising powers conferred by section 15 to detail an assessment of why the regulations are necessary and to state the permitted purpose(s) relevant to that assessment.
Amendment 10, page 9, line 15, at end insert—
“(3A) A Minister of the Crown may not exercise the power conferred by subsection (2) before full consultation on proposed changes with, in particular—
(a) the Northern Ireland Human Rights Commission,
(b) the Equality Commission for Northern Ireland,
(c) the Committee of representatives of the Human Rights Commission of Northern Ireland and Ireland, and
(d) persons whom the Minister considers appropriate as representatives of business, trade, economic interests and civic groups.”
Clause 15 stand part.
Amendment 40, in clause 16, page 9, line 19, 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 16 stand part.
New clause 1—Maintaining levels of environmental protection—
“(1) A Minister of the Crown must, before exercising the powers conferred by this Act, make a statement to the effect that in the Minister of the Crown’s view the exercise of the powers would not to any extent have the effect of reducing the level of environmental protection provided for by any existing environmental law.
(2) The Minister of the Crown must seek the views of the Office for Environmental Protection before making a statement under this section.
(3) Any statement under this section must be published in such manner as the Minister of the Crown considers appropriate
(4) The Minister of the Crown must lay a copy of any statement under this section before each House of Parliament.”
This new clause would ensure that the powers proposed to be conferred by this Bill could be exercised only if in the relevant Minister’s view this would not undermine existing levels of environmental protection.
New clause 2—Environmental principles—
“No regulations may be made under this Act unless—
(a) a policy statement on environmental principles has been laid before the Northern Ireland Assembly under paragraph 7(6) of Schedule 2 to the Environment Act 2021, and
(b) paragraph 8 of Schedule 2 to the Environment Act 2021 is in force.”
This new clause would prevent the exercise of any powers proposed to be granted by the Bill until the Department’s policy statement on environmental principles has been finalised and Departments and Ministers are under a statutory duty to have due regard to it.
New clause 3—Meaning of “environmental protection”—
“In this Act “environmental protection” means any of the following—
(a) protection of the natural environment from the effects of human activity;
(b) protection of people from the effects of human activity on the environment;
(c) maintenance, restoration or enhancement of the natural environment;
(d) monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”
New clause 7—Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly—
“Section 2 of this Act has no effect unless it has been approved by a resolution of the Northern Ireland Assembly.”
This new clause would require the approval of the Northern Ireland Assembly before this Act could be used to limit the general implementation of the Northern Ireland Protocol.
New clause 8—Publication of legal advice—
“(1) The Prime Minister must lay before each House of Parliament a copy of the legal advice considered by the Government in respect to this Act which it received before the day of the First Reading in the House of Commons of the Bill for this Act.
(2) The Attorney General must lay before each House of Parliament the assessment made by Her Majesty’s Government of the doctrine of necessity in relation to the operation of the Northern Ireland Protocol prior to the First Reading in the House of Commons of the Bill for this Act.
(3) The Lord Chancellor must lay before each House of Parliament a report on to what extent the Bill for this Act was in accordance with Lord Chancellor‘s constitutional role in relation to the constitutional principle of the rule of law.”
This new clause requires the publication of the legal justification for the Bill for this Act.
New clause 9—Excluded provision: Parliamentary approval—
“(1) A Minister of the Crown may not make regulations that either bring into force any provision of this Act that makes any provision of the Protocol (or any related provision of the Withdrawal Agreement) excluded provision, or that make any such provision excluded provision, unless all three conditions in this section are met.
(2) The first condition in this section is that a Minister of the Crown has laid a statement before both Houses of Parliament setting out reasons—
(a) why, if no safeguard measures under Article 16 of the Protocol have been taken by the United Kingdom, the Minister of the Crown considers it appropriate to exclude a provision or provisions at that time rather than to do so only after the United Kingdom has taken such safeguard measures; and
(b) why and how, in the view of the Minister of the Crown, making the regulations is consistent with the international obligations of the United Kingdom.
(3) The second condition in this section is that the House of Commons has resolved, on a motion moved by a Minister of the Crown, to take note of the statement under subsection (2).
(4) The third condition in this section is that a motion for the House of Lords to take note of that statement has been tabled in the House of Lords by a Minister of the Crown and—
(a) the House of Lords has debated the motion, or
(b) the House of Lords has not concluded a debate on the motion before the end of the period of five Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a).”
This new clause would, except where the government had already adopted safeguard measures under Article 16, require Ministers to make a statement to the House as to why they thought it appropriate and lawful to treat provisions of the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement as excluded provisions; and to require a House of Commons vote, and a debate in the House of Lords, before those excluded provisions could be brought into force.
New clause 10—Condition prior to limitation of the Northern Ireland Protocol—
“(1) This section sets out the condition which must be satisfied before a provision of—
(a) the Northern Ireland Protocol, or
(b) any other part of the EU withdrawal agreement,
is excluded provision.
(2) The condition must be either—
(a) the agreement condition (see subsection (3)), or
(b) the Article 16 condition (see subsection (4)).
(3) The agreement condition is that the United Kingdom and the EU have agreed following negotiations that the provision is excluded provision.
(4) The Article 16 condition is that—
(a) the United Kingdom is unilaterally taking appropriate safeguard measures, in accordance with Article 16 of the Northern Ireland Protocol,
(b) before taking those measures, the United Kingdom has followed the procedure set out in Annex 7 to the Protocol (which governs the taking of safeguard measures), and
(c) the safeguard measures being taken necessarily require that the provision is excluded provision.
(5) Where the condition is no longer satisfied, then the provision ceases to be excluded provision, and as a consequence any regulations made dealing with excluded provision lapse to the extent that they relate to provision which is no longer excluded provision.
(6) For the avoidance of doubt, the provisions of this Act remain subject to section 7A(2) of the European Union (Withdrawal) Act 2018, save where a provision of—
(a) the Northern Ireland Protocol, or
(b) any other part of the EU withdrawal agreement,
is excluded provision which has satisfied the requirements set out in this section.”
This new clause is intended to prevent Ministers from deviating from the international agreement that is the NI Protocol unless this has either been agreed to between the UK and the EU, or the UK have followed the procedure set out in Article 16 of the Protocol for unilaterally taking safeguard measures.