European Scrutiny Committee
Oral evidence: The UK’s new relationship with the EU, HC 120
Tuesday 15 November 2022
Ordered by the House of Commons to be published on 15 November 2022.
Members present: Sir William Cash (Chair); Mr John Baron; Geraint Davies; Mr Marcus Fysh; Mr David Jones; Margaret Ferrier; Craig Mackinlay; Greg Smith.
Questions 212 - 272
Witnesses
I: Rt Hon James Cleverly MP, Secretary of State for Foreign Affairs, Foreign, Commonwealth and Development Office; Olaf Henricson-Bell, Director, EU Directorate, Foreign, Commonwealth and Development Office; Mark Davies, Director, Northern Ireland Protocol Task Force, Foreign, Commonwealth and Development Office.
Witnesses: Rt Hon James Cleverly MP, Olaf Henricson-Bell and Mark Davies.
Q212 Chair: On behalf of the Committee, Foreign Secretary, thank you for coming this afternoon. Over the last week, the Northern Ireland protocol and the state of UK-EU negotiations on its reform has resurfaced, and it is reported that the mood music, whatever that means, in London and Brussels is good for a deal. On Thursday, the Prime Minister stated he was pleased with how the search for a solution was going, and there have been encouraging words from the Irish Taoiseach and also from the European Commission President. Of course, what really matters is what is exactly on the table, and we will ask you about this today.
We are interested in where the Government’s red lines are—we thought we knew where they were—if, indeed, they have moved since July last year. You are well aware of our concerns that centre on the governance of the protocol, its provisions on alignment with EU law in Northern Ireland, and how it continues to negatively impact the people and businesses of Northern Ireland. I must be not only blunt. Pleasant mood music and words of encouragement are welcome, but the protocol is fundamentally flawed, as this Government said only last year. I fear that the protocol’s flaws cannot be negotiated away. Major reform is the only viable way forward for this United Kingdom, in terms of the integrity and territorial and constitutional role of the United Kingdom.
We also have open inquiries into the long delayed UK-EU trade and border deal for Gibraltar and the overseas territories, and this raises important questions regarding the Government’s priorities. We will perhaps try to look at one or two other matters, but I will also make a special point in speaking about the Government’s plans for EU retained law.
We have held an inquiry over an extended period of time—several months—and we understood quite clearly from the Government’s position, as set out in their responses to our Committee’s inquiry, which was delivered in its report on 21 July, that this was going to be stuck to. We want to know from you that this is the position.
We also have a question about repeals with regard to the Retained EU Law Bill and the sunset provisions, and its potential interactions with the Northern Ireland protocol. These are incredibly important matters. Some may wonder what on earth this EU retained law is. It is all in our report of 21 July. I hope that people who are watching this session may wish to have a look at it, because it is clearly set out. It is of massive importance to the future of the United Kingdom.
If I may say, Foreign Secretary, you have been in post for about two months, but that is a bit of a euphemism, because you have been in post for a good deal longer than that, and you and I have been discussing these matters not only publicly but privately. You have been Europe Minister. You have been in three Administrations in the last year. Is that right?
James Cleverly: Yes.
Q213 Chair: We define our Administrations by reference to who is Prime Minister as well, so you have managed to, as it were, hang in there, if that is the right way to put it.
Before we start, we have not heard evidence from Mr Henricson-Bell or Mr Davies before, so would you be kind enough to introduce yourselves before we get down to the meat of the issues? There is quite a lot of meat here.
Mark Davies: I am Mark Davies. I am director of the Northern Ireland Protocol Task Force in the Foreign, Commonwealth and Development Office.
Olaf Henricson-Bell: I am Olaf Henricson-Bell. I am the EU director in the Foreign Office.
Q214 Chair: Foreign Secretary, as I mentioned, you have been in post for roughly two months, certainly in this present context, but you have been around for some time on these matters, as I have just described, so you are very familiar with the UK’s post-Brexit relationship with the EU. What I really wanted to ask you first of all was a very simple question. Is there any change in the policy or in the direction or navigation of these matters under the new Administration? It is a straightforward yes or no.
James Cleverly: With respect, Sir William, one of the reasons I now find myself with a grey beard in Government, having been in this job for the best part of two months, is that I have learned that yes/no questions are rarely quite as simple as they are suspected to be.
Chair: But the answers often are.
James Cleverly: The challenges and the problems with the implementation of the protocol have not changed. The concerns that we have raised regularly and publicly about the implications for community relations in Northern Ireland—
Q215 Chair: Before we get on to the Northern Ireland protocol, I did ask about the post-Brexit relationship with the EU. If I could just make a very simple point, section 38 makes it absolutely crystal clear that it is the endorsement in statute of the sovereignty of the United Kingdom—I say United Kingdom—notwithstanding the withdrawal agreement itself and the Northern Ireland protocol. Article 4 of that withdrawal agreement clearly intended to subjugate us indefinitely to the legal framework of the EU, hence the Retained EU Law Bill, which we will come on to later.
I asked you at the beginning if you would be kind enough to reaffirm that there is no change in policy, because that would create all kinds of difficulties in terms, for example, of attitudes, and also the question of whether we would end up by looking at Remainer attitudes, if I can put it that way round, which are prevalent in certain parts of the establishment and, of course, in the House of Lords as well. I want to be absolutely crystal clear with you.
The Prime Minister said that we were going to stand by our manifesto. We won a general election on a manifesto, which the Prime Minister has quite properly said they will stick to at all costs, in all respects. I want to ask you a simple question again: is section 38 completely embedded, with no change of policy on that? Furthermore, will there be no change in the direction of policy with respect to EU retained law?
James Cleverly: The Prime Minister campaigned for Brexit. He voted for Brexit. He is on record as doing that, as did I. The commitment that we made to the British people in the 2019 general election was to get Brexit done, which means leaving the European Union and redefining our relationship with the European Union, as an institution and as its member states, as a friend, as a trading partner and as a geographical near neighbour, but not as a member.
Those things are absolutely still committed to and I have absolutely no doubt in terms of the Prime Minister. As I say, he campaigned for this and voted for this before it was fashionable in UK politics to do so. He took a professional risk in doing so. It seems to have played out well enough for him—and me, I suppose—but the commitment to that is unwavering.
Q216 Chair: I only mention the word “Chequers” as being an example. We have noticed a few special advisers reappearing, who are totally committed to Chequers, for example, and things like that. We have reason to be concerned that there might not be such a simple answer as the one that you have just given, which, on the face of it, sounds good, but we will be watching this very carefully.
To ask you another question, what have you achieved so far in your time at the front of UK-EU relations?
James Cleverly: I am going to start by working backwards chronologically. Earlier on, late this morning, I had a meeting with the Cypriot Foreign Minister and we signed a memorandum of understanding covering a whole range of bilateral issues. That is an example of where, notwithstanding the fact that we have left the European Union, we are not just maintaining but actively pursuing stronger bilateral relations with member states of the EU, because they are incredibly important.
As I say, I did so with Cyprus. On Friday of last week, I was at the Arc de Triomphe, at the remembrance service of the French fallen during the war. I then went on to have a bilateral meeting with my French counterpart, which led into the Home Secretary signing the illegal migration agreement with her French counterpart.
As a Department—and myself personally as the Foreign Secretary—we are ensuring that we have good, pragmatic working relations with our European counterparts. A big driver or stimulus for that is Russia’s invasion of Ukraine, and maintaining the coalition of support across Europe for Ukraine in its self-defence is an important part of what I have been seeking to do since becoming Foreign Secretary, ensuring that the work that we do as a European continent—both EU members and non-EU members—supports the Ukrainians, but also that we recognise the pressure that that conflict has on the wider world, so helping to co-ordinate a pan-European voice in support of things like the Black Sea grain initiative and providing food security and energy security to the global south.
Both in our bilateral relationships and our continental relationship with the wider world, I have been very much focused on that. I feel that we have created a good, pragmatic set of bilateral relations with member states, as well as building a positive, load-bearing relationship with the Commission.
Chair: It sounds good up to a point, but I just want to ask another question. You talk about the bilateral relations with member states. Of course, the member states are not in a position to have bilateral relations where there are treaty issues involved.
Take the excruciating experience that I had in a COSAC meeting, listening to the President of France talking to us before the election for about 40 minutes on the issue of the political sovereignty of Europe. You will understand that, in terms of bilateral relations with France, however much we love the French, the bottom line is that there is chalk and cheese. He is still President, but, of course, he is hemmed in by Le Pen and Mélenchon, and it is a different story. In other words, he is, to some extent, neutralised, which is important for you, as Foreign Secretary, to appreciate, I am sure.
The question is about how bilateral relations on these seminal questions, which relate to the issue of our relationship with the EU, can be differentiated from the bilateral relations with individual member states that are, themselves, committed to the treaties, which leads towards, inexorably, the kind of policies that are pursued by the EU as a whole.
James Cleverly: You make a good point about the relationship between the EU member states and the EU as an institution. We have chosen to leave, and so we are not bound or hampered by that, to use your description, but I would also make the point that the EU member states have been engaging with us. I am reminded that we have signed six bilateral agreements so far this calendar year, and we have signed 14 in total since 2021, on a range of issues, so we are able to pursue our bilateral interests.
From the UK’s point of view, of course, I will keep investing, as will the ministerial team and our officials, in those bilateral relationships, because there are topic areas—for example, cross-channel illegal migrants—where that agreement matters hugely to the UK. France feels very strongly about that as well, because it does not want people smugglers and people traffickers operating on its beaches. There is a mutual interest that exists very much between the UK and France.
It is in the interests of member states to engage with us on the areas where we can most effectively drive change bilaterally, but, of course, there are always going to be areas where the EU is heavily involved. For example, when the UK was responding to Russia’s invasion of Ukraine, we were, using our sanctions mechanism, most typically interacting with the EU collectively, because that is the mechanism through which EU member states impose their sanctions. Sometimes it is country to country or capital city to capital city; sometimes it is between London and Brussels. Whichever is the most effective, that is what we will pursue. As I say, I have been getting very good levels of bilateral agreements on all kinds of things, from migration to defence.
Q217 Chair: With respect to the small boats situation, we had the borders Bill. Under the previous Administration—the same Government but a different Administration—the amendment that I put down would have taken us out of the Human Rights Act and out of the European Convention on Human Rights. The question that I put to the new Home Secretary only last week, or the week before last, was about how using our domestic law, as we are out of the EU, notwithstanding the withdrawal agreement, all the protocols and section 38, which I have mentioned, would deal with the problem. It is not and cannot be dealt with, as a matter of law, without making the appropriate changes. This is not just about whether they are immigrants, but whether they are unlawful immigrants or genuine refugees. The refugee convention is similarly at issue in this context.
Finally, if you could just simply say to me, “Yes, we are going to address this”, it will be a great help to a lot of people.
James Cleverly: I can assure the Committee that we are absolutely committed to addressing this. I had a bilateral meeting with the Home Secretary just before the two of us went to Paris respectively. I know that the Prime Minister feels very strongly about this and sees this absolutely as a priority. The Home Secretary does. I made it very clear to both the Prime Minister, when we travelled together to Sharm El Sheikh, and to the Home Secretary, when we met bilaterally, that the Foreign, Commonwealth and Development Office will absolutely put all our weight behind the resolution of this.
Indeed, shortly after that meeting, I had the opportunity to meet Prime Minister Rama of Albania in Germany, and I made it clear to him how important this was as an issue to the UK. To be fair to him, he is not at all happy with this situation either, and has said that he is very keen to work with us again. He is very keen to work with us bilaterally on what is an issue that both capital cities feel strongly about.
You mentioned the situation with the European Court of Human Rights. The Ministry of Justice will be taking through the Bill of Rights legislation that will seek to address some of the areas that you highlighted and give the UK the powers that it needs to help the people who genuinely need help. It is very important that we send the message that we are a generous country at heart, and I absolutely stand by that.
We also recognise that there are people—and we see this on social media—who are proactively trying to abuse our generosity and, in doing so, are damaging the good will towards those genuine refugees, whether they be from Ukraine, Afghanistan, Hong Kong or other places in the world, who the British people naturally would want to help and support. The people who are seeking to abuse the system are undermining public good will towards those areas, and it is absolutely something that the Prime Minister is seized of and absolutely something he is committed to address.
Q218 Greg Smith: Foreign Secretary, the Chair alluded to some of these points on the Northern Ireland protocol in his opening remarks. I would like to open the questioning specifically on the protocol before other colleagues go into various detailed points on it. Has there been any development change or shift at all in the Government’s policy towards the Northern Ireland protocol since the command paper in July?
James Cleverly: We are committed to addressing the problems that we highlighted in the command paper, and we distilled those problems down into a problems and solutions paper that we put to the Commission in the summer of this year. Our frustrations and our concerns are not confected. Our concerns about community tension, our belief in the importance of cross-community consent, the importance of the Good Friday institutions, of the devolved Assembly and the importance of giving the people of Northern Ireland meaningful membership of the United Kingdom, not just in name but in practice, all remain absolutely the case.
As Sir Bill said, the fact that I am speaking regularly with Maroš Šefčovič, that our officials are speaking regularly and that there is a better atmosphere—you used the words “mood music”, Sir Bill—is important, and that is positive, but it should not be read that that means that I am shy in putting forward the very real concerns that exist. The fact that I am able to do so in a constructive environment—and I do genuinely believe that they are listening—does not alter the fact that the challenges are real and we cannot wish them away.
However we resolve this—and we do genuinely seek resolution on this—we have to address those issues. You cannot skirt around it, you cannot ignore it and you cannot push them to one side. We have to address these issues. That is not going to be easy and I do not yet see a route through that. We are still looking and, if we can find one, I am very happy to, but those concerns are there and, as I say, they cannot just be wished away.
Q219 Greg Smith: In terms of the recognition of those concerns and the challenges of the Northern Ireland protocol, the challenges are very Union and very United Kingdom, as the Chairman said in his opening remarks. Where does resolving the Northern Ireland protocol challenges sit in terms of the list of priorities that you have as Foreign Secretary, that your Department has and, indeed, the Government as a whole have? How high a priority is it?
James Cleverly: It is up there. It is on the podium. You are right. This is about the Union. This is about our country. It is not a peripheral trade issue. There are trade-related issues. There are a whole load of complicated legal things that I have to refer to in my notes and tap my officials on the shoulder to remind me of the intricacies of them, so that is true at one level. At the more fundamental level, it is about the recognition that Northern Ireland is an integral part of the United Kingdom of Great Britain and Northern Ireland, just as much as Braintree is in north Essex. Northern Ireland and north Essex are part of the UK. That is really important.
Because of its history, of course, Northern Ireland does have a unique relationship with Ireland, and we want to protect all the elements of the Belfast/Good Friday agreement, including that connectivity with Ireland, as well as the connectivity with the rest of the UK, and north-south trade and east-west trade. That makes it a degree more complicated, but, at its heart, it is about making sure that every single part of the UK, including Northern Ireland, is meaningfully such.
Q220 Greg Smith: That is a helpful answer. Before colleagues come in with more detailed questions, the negotiated solution that the Prime Minister has spoken about and that you have spoken about in answer to the Chair’s questions earlier is one element of this. Are you confident that the Government have done everything humanly possible for that negotiated settlement?
On the other side of that very same coin, we have the Northern Ireland Protocol Bill, as introduced by your predecessor but one as Foreign Secretary and the former Prime Minister, progressing through Parliament. In terms of the priority scale and the weighting, you have the negotiations going on on one track, and the protocol Bill going through Parliament. Has the foot come off the gas a little bit on the Bill or are they still given equal footing, knowing that we may well need that piece of legislation to resolve this?
James Cleverly: I do not think that it will be a surprise to the Committee to hear that the European Commission does not like the Northern Ireland Protocol Bill. It is not comfortable with it. It does not like it as a potential vehicle for resolution. I do not think that is giving away any secrets. We have always made it clear that the Bill exists for a reason, but we have also made it clear that our preferred resolution to this is a negotiated resolution.
The commitment that I made when I stepped in as Foreign Secretary and had my first conversations with Maroš Šefčovič and his team is that the things that you have said publicly remain the case. The Bill is there for a reason. Our preferred resolution to this is a negotiated settlement. We are not going to fast-track the Bill. When I first started speaking, it was very clear that there was a concern that we were not negotiating in good faith and that that was what we were saying while we rushed through the Northern Ireland Protocol Bill, which was perceived to be our preferred option.
I made it clear that any observer of British politics knows that there is a rhythm and a tempo to the progress of legislation, particularly legislation as contentious as this, but there are strong views about this legislation, so there will be a rhythm and pace to that, and I was not going to rush it through. By the same token, it exists for a reason. It was laid for a reason. I also made it clear that we were very much committed to negotiating in good faith and negotiating with the commission.
Maroš Šefčovič and I speak roughly every couple of weeks or so. We are able to speak quite frankly. The Prime Minister makes reference to making progress, and we have been able to discuss in more details some of the elements that have been a deep disagreement up until this point—the IT system that we might use, for example. We have been talking about a number of other things, none of which—I will be honest with the Committee—has come to a point of resolution, so I have not been able to tick things off just yet, but we are speaking, and that has been an improvement on the past.
I have made it clear that any negotiated agreement that we come up with has to address the points that we have highlighted and, really importantly, has to be acceptable to all the communities in Northern Ireland, because that is one of the philosophical foundation stones of the Belfast/Good Friday agreement.
Q221 Chair: On this business of the Bill, you mentioned that. I had a meeting with the former Prime Minister in Number 10. You were not present, but the Foreign Secretary was there at the time, who then became Prime Minister, and others. The bottom line or the thrust at that meeting was that the Bill, even though it had been published, was not going to get its Second Reading, we thought. That is what we understood. You know this, because we discussed it as well.
For practical purposes, preeminent members of the current Administration—I know who they were—were against the idea of that Bill being taken to Second Reading. Where is the position with regard to what you have just said to Mr Smith in relation to their attitudes? I know that people can change their minds, and that they may have other things going on in their heads at a certain point in time and then they adjust. I am being as generous as I can, but I am naturally suspicious—you can understand why—because the opposition to getting the Second Reading of that Bill was enormous. I know who they were, and I would just like to know what your view is about the current Administration’s view of this at this moment in time.
James Cleverly: The current Administration want to get this resolved. That desire has not changed. As you say, Sir Bill, you and I have discussed the Bill. I spoke about the Bill last time I was in front of the Committee in my former role as Europe Minister. We know that there is deep opposition to the Northern Ireland Protocol Bill, both in the Commons and in the House of Lords. We know it was not and was never going to be an easy Bill, but we introduced it. It went through its Commons stages. It is now at the House of Lords.
Chair: It had a 74-vote majority.
James Cleverly: Indeed. It is now at the House of Lords.
Chair: There were no amendments; it went straight through.
James Cleverly: Indeed. Lord Ahmad, who is taking the Bill through the Upper House has been very successful in getting the Bill to progress as far as it currently has. We know that this is not a motherhood and apple pie Bill, so we know that it is going to be challenging to get through its whole progression. As I say, we are committed to getting resolution on this, whether through the Bill or through negotiation, and we will pursue both tracks.
Various people would view the preferred option differently but the point is that we are going to pursue both tracks. Ultimately, whichever track is successful, we need to get these things resolved, for the reasons that we discussed, because of the importance of Northern Ireland to the Union.
Q222 Mr Baron: Thanks for joining us today, Foreign Secretary. I suggest to you that, for negotiations to succeed, good will has to be reciprocated. When the Northern Ireland protocol was being negotiated, it was on the general understanding that a light touch would be applied by the EU, provided there was no evidence of distortions to trade elsewhere within the customs union. There has been no such evidence, and yet, by some calculations, there are more EU customs checks on the GB-Northern Ireland routes than there are at Rotterdam, which, as you well know, caters for an awful lot of trade from the world into the EU, including from China, which has a far less strong regulatory regime.
Why do you think that the EU is adopting this hard line when there is no evidence of distortion and when we have a strong regulatory regime? In fact, if anything, we have been strengthening it. Why do they have problems with us operating the red and green lanes, for example, for GB-Northern Ireland trade? Why is there a lack of trust by the EU?
James Cleverly: It is genuinely difficult for me to comment on what might have been the motivations earlier on in the process. Figures vary, as they often do, but the broad thrust of the point that you make about the disproportionality of checks at the Northern Ireland border with Ireland is a legitimate one. The EU has very extensive external borders—both land borders and, as you say, maritime customs borders—for goods entering the EU. We saw an enhanced focus on the checks between Ireland and Northern Ireland, between Ireland and the UK.
As I say, figures vary, so it is difficult for me to say with complete certainty, but I think that has calmed somewhat. Perhaps it is inevitable that, when there is a change in circumstance, such as when we left the European Union, that may well be the trigger event for it. As I say, I do not want to imply or state something that I do not have an evidence base for, and I cannot know why there was that level of checks.
Q223 Mr Baron: I take on board what you say. There might be a softening, but in terms of a Sainsbury’s truck filled with pork pies from Lancashire heading into Northern Ireland—they do not have Sainsbury’s south of the border—you are pretty sure that that is going to remain within Northern Ireland. It is still having to complete hundreds of pages of documentation. That is completely disproportionate. It is not in good spirit. It shows very little good will. Are you doing all you can to make this point to the EU? It is endangering the Good Friday agreement, which is something that is very dear to all of us.
James Cleverly: You make a very good point, and this is one of the examples that we have given, whereby, in terms of packaged, branded goods that have no outlet in Ireland, there is a pragmatic way forward that we are discussing. We are discussing the red and green lane ideas. We are discussing cross-border trade. As is often the case, a large proportion of cross-border movements are from a relatively small number of entities, and we have discussed and are discussing with the Commission the practicalities of that and the facts on the ground.
My observation is that one of the areas where there has been a lack of progress in the past is where the negotiations are done to address the theoretical risks. They are really challenging and, arguably, perhaps even insurmountable. Take the dairy industry, for example, which has lots of zigzagging and crisscrossing across the border, which, theoretically, is hugely problematic, but, in practice, is done by a relatively small number of very highly trusted entities.
The reality on the ground is where we could unlock some of these challenges by differentiating the theoretical risk of single market breaching in terms of animal husbandry levels and environmental levels. Whilst the theoretical risks are really difficult, the practical risks are very much surmountable. That is where our resolution sits in terms of making sure that we focus on the realities of the situation.
The point, as you started off with your question, is that so much of this stuff is based on mutual trust and good will, and the understanding that we are not trying to damage the EU and that it is not trying to damage the UK. If we can have that as a starting point really embedded in our thinking and our negotiations, there is an opportunity to get through this.
When we talk about progress being made, if you are an auditor and you say, “Point to me the lines on this spreadsheet where progress has been made”, I would maybe struggle, but, as someone who has done negotiations and understands what unlocks these sometimes really knotty problems, mutual trust and mutual understanding can work wonders. We are heading in the right direction there.
My big caveat, though, is that a good working relationship, regular conversations, good will and trust are necessary but not sufficient. Those ingredients are there, but we should not rush to the conclusion that, therefore, everything is about to come good, because there is still serious work to do and there are still big gaps.
Q224 Craig Mackinlay: It is good to see you, Foreign Secretary. I am sure that I do not need to regurgitate what the Northern Ireland protocol says. The first page or so of it says how important the Good Friday agreement is. The objectives in point 1 of the first article again guarantee how important the Good Friday agreement is. Article 13, section 8 says that this protocol can be changed by mutual consent, which I assume is the process that you are in. Then, of course, there is article 16, which is the final trigger if things go horribly wrong.
It seems to me that the EU signed all of that in good faith, saying how important the Good Friday agreement is, but I cannot see that its actions are really in that spirit. You say—and I am very pleased to hear—that you are having probably more informal discussions with Mr Šefčovič every couple of weeks, but are you in control of the negotiations of the Northern Ireland protocol, or who is?
James Cleverly: It is me.
Q225 Craig Mackinlay: That is great, because I hear that there are technical discussions going on between officials of the EU and ourselves, and I would have thought that is putting the cart before the horse, because we have not quite got the political agreement. I would have assumed that you would have a political agreement, and then the officials do the technical bit—how this new database is going to work, how we are going to deal with pork pies and all of that stuff. Unless you can give me an assurance that you have a political direction, I do not quite know what they are doing. If your grand political direction has a breakthrough with the Commission, then you would have the technical after that. Why are those technical discussions happening at the moment?
James Cleverly: If I can take your assessment, you have said that technical and political are the two elements of it. It strikes me that it is a bit more like there are three elements. There is the macro-level political. Do we genuinely want the same thing? The working assumption has always been yes, but there is some detail in that macro-level assumption that needed to be thrashed out.
Do we genuinely want a deal or do we want a row? I know there was a perception of the UK that it was politically beneficial for us to have a row with the EU, and there was a perception that what we really wanted was not a solution but to be seen to be the martyrs or the good guys, like George and the dragon, fighting off the baddies in the EU. That perception was not universal, but it certainly existed in pockets. That probably hampered progress.
At the macro level, it was a case of, “Do we want to do this deal—yes or no?” and the message came back, “We genuinely want to get this resolved”. Things like Covid and the Russian invasion of Ukraine are reminders that, as important as this is—and this is incredibly important—we would all much prefer to be focused on the other stuff that we have to deal with, both domestically and internationally. That was the macro level. We both want to get a deal done.
Then, as you say, there is the technical level stuff. How would a red and green lane work? How would we have passage of information to give the EU the reassurance that the stuff that is moving is what it says it is, etc? Then there are the more micro-political decisions, which are about what is politically acceptable in Northern Ireland, in the EU and in the rest of the UK.
Those were the three building blocks. The middle one unlocks all the technical stuff, but there was, as I say, a high-level recalibrating of aspirations that needed to happen before that. We are in a good place there. I have been very straight with Maroš and have said that I am not going to say yes to proposals that I do not think would have cross-community support in Northern Ireland. There is literally no point in me saying yes to things that are unacceptable to all the communities across Northern Ireland, because they just will not stick.
I replay that message over and over again to say, “We are in a good mood with each other. That is lovely. We are talking regularly. That is also lovely, but please do understand that I have a duty to all the communities in Northern Ireland as Foreign Secretary, because I am their Foreign Secretary, and I have to make sure that whatever ideas we come up with to address this problem address the concerns of all the communities”, and the Unionist communities are the ones that people think of. It has to conform to all the communities, because that is the foundation stone, as you say. It is woven into the protocol, and it is about maintaining the principles that underpin the Good Friday agreement.
Q226 Craig Mackinlay: Just referring back to a week ago, when Mr Šefčovič was here addressing the UK-EU Parliamentary Partnership Assembly, which is a function of the whole TCA, he was being fairly robust that the protocol has to be adhered to. He said that you are not worlds apart, but that seems to me quite a big world apart, if he feels that the full ambit of the protocol should be applied. I am a little bit concerned about how close you are in realistic terms.
James Cleverly: I have seen reports that both Maroš Šefčovič and I look at and just say, “According to this third party reporting, we are literally about to kiss and sign”, and we are both looking at each other, because that is not where we currently think we are, and so your assessment is right. I do not think that the list of challenges is necessarily a long one, but they are tough challenges. That, in itself, is not bad.
Again, I am just trying to make sure that we manage expectations. I do not want people to be defeatist, but I also do not want people to run away with the idea that we are just on the cusp of some amazing breakthrough that was there all the time, if only we had looked a little bit harder. There are some real challenges that need to be overcome.
Q227 Craig Mackinlay: What is the role of the Secretary of State for Northern Ireland in this whole arrangement? We agree that the GFA is the foundation document that the protocol should have full regard to. We can have a discussion as to whether it does. What is the role of the Secretary of State for Northern Ireland in this round of negotiation?
James Cleverly: His role is to help me make sure that, in the conversations that I have with the Commission, I am fully up to speed with the practicalities of what is going on in Northern Ireland. As parliamentary colleagues, we speak informally all the time. We speak formally nearly once a week, making sure that I am fully appraised of the situation with regards to the formation of the Executive and about the implications of the forthcoming elections.
I am Maroš Šefčovič’s formal negotiating interlocutor, but, of course, because of the nature of what we are negotiating, it is incredibly important that the FCDO, the Northern Ireland Office, the Secretary of State for Northern Ireland and I are very closely interwoven, and that, at both official and ministerial level, we talk very regularly. What I want to make sure of is that both the truth and the perception that I am always thinking of Northern Ireland when I am negotiating are there. I want Northern Ireland to understand that, I want the Commission to understand that and I want to make sure that it is a reality.
Q228 Craig Mackinlay: What you are telling me is that he has a key role in what you are trying to achieve. Is that absolutely formal? It seems to me that the Northern Ireland Secretary is just trying to get the Assembly together—that is his main focus—and to try to get the Unionist community back on board, as it were. Is that absolutely formal?
It seems to me that is a very key part, because, unless the Unionist community is happy with this—and it has every right not to be happy—this is not going to work, so I would have thought that that really needs to be massively formalised rather than him just having one focus on getting the Assembly back together again. Can you give me that assurance that he is absolutely entrenched with this?
James Cleverly: As I say, we talk about this regularly. We talk about this in detail. Of course, his desire to get the Assembly up and running again and have devolved Government re-established in Northern Ireland is very much hand in glove with our desire to get the protocol issues resolved as well. They are interwoven, and that is why we are working so closely together. It has been made very clear by the DUP and other Unionist parties in Northern Ireland. Sometimes people focus very much on the DUP. It is worth remembering that concerns about the protocol come from right across the Unionist communities in Northern Ireland, and so us addressing the protocol and reassuring the Unionist community and Unionist politicians in Northern Ireland is all part of the same thing.
Q229 Craig Mackinlay: I am very pleased that you said that Northern Ireland, to your point of view, is as important as Braintree in terms of being part of the UK. Northern Ireland is in a very strange constitutional place. It has no seat at the table in framing some of the laws and the single market rules that it has to comply with. It has no basis at all, and that is an odd place to be. You would not want Braintree to be in it, I am sure.
You said that the Northern Ireland Protocol Bill is contentious. With that in mind, I would have thought that the Northern Ireland Protocol Bill should not be contentious at all to anybody in this Parliament. How are we trying to get over to people that this is an uncontentious Bill, when the EU is not prepared to move on really fundamental constitutional issues of the place in the Union of Northern Ireland?
James Cleverly: You make a really important point about the democratic deficit when it comes to Northern Ireland. That is very much in our thinking. I would love to be in a situation where I could assert that this is not contentious and for that to change minds. The points that need to be addressed dispassionately—that cross-community consent and addressing the democratic deficit—are uncontentious. It is when we then apply it to the practicalities of the changes that we are hoping to resolve that it gets a lot harder.
You are right about the foundation stones and, funnily enough, there is a lot of agreement on those foundation stone principles about community consent and about our desire to maintain the peace and the prosperity that we have seen for the best part of 25 years since the Belfast/Good Friday agreement was signed. Everyone agrees on that, but it is the middle link in the chain where we are still getting difficulties. We are going to keep working through them, but will never lose sight of why we are doing this.
Q230 Craig Mackinlay: Are you making use of our embassy in the US to put these same points to the US? I know that it does not have a formal role, but it has an influence and a voice. Are you putting these constitutional points to it very forcibly?
James Cleverly: Yes. I know that we have those conversations in the US system. As you say, the US does not have a formal role, but, quite understandably, and importantly, it retains a very close interest and has done for a very long time. It is not just under the current President. The United States of America has, understandably, been very interested and engaged with this.
I have had conversations, both at the Department of State and on the hill, about why this is so important to the UK, about why we value the place of Northern Ireland in the UK so very strongly and about why we need to ensure that we have cross-community consent for all these things, and the Americans do listen. I know that it is sometimes easy to think that the Americans have a particular viewpoint on this and are not going to move from that. In my experience, they do listen. They listen very carefully.
I had a conversation with the US ambassador to the Court of St James’s on this issue just a few weeks ago, at the beginning of this month. She had just come back from visiting Northern Ireland and was genuinely very engaged about the challenges, about the potential solutions, and about listening to all communities. That is a very valuable contribution.
Q231 Chair: Do you see anything coming out of the current situation in the mid-term elections that would in any way affect American attitudes, particularly having regard to the House of Representatives? Just for the sake of argument, would you think that, if the House of Representatives goes Republican, there would be a change in policy? Mrs Pelosi would disappear from that point of view.
James Cleverly: These US mid-term elections have defied all the predictions of people from right across the political spectrum and right across the world. My understanding is that the likely disposition is for a small—we know that the Democrats have a one-seat majority in the Senate, but—
Q232 Chair: I am less interested in your speculation about what might happen and more interested, if I may say, in the question of the fact that, under the United States constitutional arrangements, the House of Representatives is primarily responsible for trade questions. That has a massive impact in terms of the potential for shifting the unbelievable opposition to any shift in relation to the Northern Ireland protocol as respects the members of the House of Representatives. That could turn out to be a very important moment. Do you not agree?
James Cleverly: The only thing that I would warn is that it is often the case in politics that the voices that are heard most loudly are not always representative of the whole view of the House. When I went to Washington earlier on this year, I heard from a range of political voices, and many were very keen to develop closer trading relationships with the UK, built on what is already a good trading relationship with the UK.
I heard a lot of people who were willing to listen very carefully to what I was saying about the situation in Northern Ireland and why these negotiations are taking place, so there is definitely more openness to listen to the UK’s view on this than the media headlines would have you believe.
I do not know enough about the individuals who have been elected to the House to know whether that is going to bring about a substantial change in the mood in American politics, but, ultimately, our position is robust, because it is based on real challenges and real concerns, and we will keep making that case over in the US.
Q233 Mr Jones: Foreign Secretary, how frequently do sessions of the protocol negotiations take place?
James Cleverly: Do you mean at officials level?
Mr Jones: I mean formal negotiations.
James Cleverly: It varies, but there is some form of negotiations most weeks.
Q234 Mr Jones: Are these formal negotiations around the table? Do these negotiations comprise officials only?
James Cleverly: At the moment, the negotiations are done at officials level. As I say, I have a regular check-in with Maroš Šefčovič. It is worth noting that there is a difference between he and I talking and he and I being in talks.
Q235 Mr Jones: When did you last have a formal negotiating session with Mr Šefčovič?
James Cleverly: Formally, I have not had a full ministerial team to full Commission team since being appointed.
Q236 Mr Jones: Which Ministers are participating in these negotiations?
James Cleverly: As I say, the technical talks, as Mr Mackinlay pointed out, are happening at official-to-official level pretty much on a weekly basis. At some point, when we have the potential to make progress on one of these areas, we will sit down and have a formalisation of the talks. Much work is being done with our instruction from the political level, without formalised politician-to-politician talks.
Q237 Mr Jones: When was a Minister last involved in formal negotiations with the EU?
James Cleverly: That would have been before the summer recess this year.
Mr Jones: That is quite a long time ago.
James Cleverly: Let me just double-check on that. I am a bit uncomfortable with creating the impression that there is a very formal distinction between a formal or informal set of talks. The last time that Liz Truss, when she was Foreign Secretary, sat down with me, with senior officials on the UK side and with Maroš Šefčovič and his team would have been in spring this year, but she and he spoke regularly after that. He and I are speaking regularly, and we are progressing work.
Q238 Mr Jones: Yes, you have mentioned this previously. The thing that troubles me about your discussions with Mr Šefčovič is that he is bound by his mandate from the Commission. Has his mandate changed at all?
James Cleverly: No, not as far as I know at the moment.
Q239 Mr Jones: He is constrained by that mandate, so therefore the negotiations at official level, of necessity, must be bound by that mandate. Is that right?
James Cleverly: On his side they are at the moment, but we are not bound by his mandate, so we can put forward ideas, and we have done in terms of the problems and solutions paper. We can put forward what we propose to be potential resolutions to the issues that we have identified, which is currently beyond his mandate. Although his side of the negotiations might be bound by that, we certainly are not and will continue coming up with ideas, as we have done, to try to move this forward.
Q240 Mr Jones: With respect, you can put forward any proposals you want, but if his officials are constrained by the mandate given to Mr Šefčovič by the Commission that is a futile exercise, is it not?
James Cleverly: I do not agree. We need to demonstrate the art of the possible, because we are in the persuasion game. That is what international relations is all about. It is not about observing the world as it is, being fatalistic about it and accepting that things cannot change. My view is that, if we can put forward a compelling case for the ideas that we believe can address the deficiencies in the protocol, if we can demonstrate to the Commission that, as well as addressing our concerns, which we have discussed at length today, it also addresses the concerns that they have raised with us, that is worth putting in front of them.
Q241 Mr Jones: I appreciate that, but is it not the case that the persuasion you refer to is a political exercise, not a technical exercise? Therefore, is it not the case that really there should be far more intensified negotiations, at a political level, between you and Mr Šefčovič, after he has had his new mandate, than discussions amongst officials that, although technical and that no doubt will come up with some great ideas, ultimately they are doomed to failure because Mr Šefčovič will remain obdurate, because his mandate requires him to remain obdurate?
James Cleverly: There has been more political-level discussion than at any point I can remember. As the Chair of the Committee says, I was engaged with this before I became Foreign Secretary. There is more political engagement than I have seen. I do not know what it was like much earlier on in the process, but certainly there is much more political engagement than in recent years.
I have political engagement with EU member states. Although of course they always say that these negotiations exist between the UK and the Commission, quite rightly so, I want to make the case that we are coming up with solutions. As I say, I speak with Maros Šefčovič very regularly and the conversations that the UK officials are having with the EU officials are about demonstrating that we are coming up with ideas that we believe address our concerns and also the EU’s concerns.
I completely understand the point you are making about the sequencing. I am not suggesting that is wrong, but ultimately, if we are going to persuade the EU to be more flexible on Vice-President Šefčovič’s mandate, we need to demonstrate why that might be worth doing. That is why there is real value to us exploring, at the technical level, what the art of the possible is and what a solution might look like that addresses our concerns, which, as I say, are very strongly held and not confected, and the concerns that the EU has put forward, which are also very strongly held.
Q242 Mr Jones: When did you last have a discussion with Vice-President Šefčovič?
James Cleverly: It was just shy of two weeks ago. I can check the exact date.
Mr Jones: It was approximately a couple of weeks ago.
James Cleverly: It was the Friday before last.
Q243 Mr Jones: Have you put to him recently that he really needs to go back to the Commission and get himself a new mandate?
James Cleverly: That is quite a regular topic of conversation between us.
Q244 Mr Jones: What does he say when you put that to him?
James Cleverly: He says that he has his mandate and we need to look at what we can do to work within that mandate.
Q245 Mr Jones: It looks a bit like an irresistible force meeting an immovable object.
James Cleverly: That is how everything looks until something changes. I am genuinely not trying to be confrontational, but the point is that he is working within the limitations of his mandate. We are not bound by his mandate so we are looking at potential resolutions that we think will work and we will keep presenting those to him.
Q246 Mr Jones: You mentioned you were not disposed to rush the Northern Ireland Protocol Bill. I would suggest that the best means of concentrating the Commission’s mind on this problem and getting it to supply Mr Šefčovič with a new mandate is by cracking on with the Northern Ireland Protocol Bill. Do you think that is a fair suggestion?
James Cleverly: As I have said—and I have said this to Vice-President Šefčovič—the Bill exists for a reason. I am not going to artificially accelerate the Bill, but the Bill exists for a reason. I do not feel, having had the opportunity to reset the tone of my relationship with Vice-President Šefčovič and the UK’s relationship with the EU, that defaulting to a position that they might perceive to be one of a more confrontational nature is where I want to go to at the moment. I genuinely want to explore how far we can get and ultimately whether it is possible to get a proper resolution through this negotiated route. As I said, that has always been our preferred option, but I have always made the point that the Bill exists for a reason, because the issues that are currently unresolved have got to be resolved.
Q247 Mr Jones: Do you agree it is going to be rather harder to obtain a negotiated settlement without having some more incentive applied to Mr Šefčovič to get that mandate changed?
James Cleverly: I have been seeking to incentivise. This is the point. If we zoom out, there are a whole load of issues on which we could be better served focusing our effort and attention, in terms of some of the challenges with regard to things like energy security and our continued response to Ukraine. There is a real desire to work more closely together on these issues, and we are, but, if we could get a resolution on this, that would again unlock horsepower in terms of the relationship between the UK and the EU, which we could apply to these other issues.
There is incentive and I genuinely think there is trust and good will on both sides. There is an incentive to get this resolved. There are gaps, and those gaps are meaningful, and there are challenges, but ultimately we will continue to work to get those resolved.
Q248 Chair: Basically, in a nutshell, after this interesting exchange, the Bill in the Lords is making no progress at all at the moment. Secondly, the reality is, as Clausewitz said, diplomacy is war by any other means. The EU has its own position reflected in behaviour over a very long period of time now. All the members of this Committee have watched it with grave concern. When does it all end? Frankly, at the moment, for all the talk about good will, trust and all the rest of it, nothing ever happens. It is like watching the Mary Celeste.
James Cleverly: Chair, I disagree with your assessment of this. We have shown that we can work together; the UK and the EU can work together. Recent challenges with regard to things like energy security have demonstrated that there is an incentive for us to work well together. There has been a change of view from the EU side. They have listened to the concerns we have put forward. I am reminded, because Olaf has been dealing with this longer than me—although not as long as you—that actually at the starting point of this the EU’s position was, “There is no problem with the protocol; it is a confected problem”. They now concede—we have had this from voices within the EU and within Irish politics—there is a problem that needs to be addressed. That demonstrates a willingness to shift.
Chair: We are glad to hear that you think that they think that.
Geraint Davies: First of all, on a personal note, can I say how proud I was on Remembrance Day to see the three primary representatives of the Government, namely the Prime Minister, the Foreign Secretary and the Home Secretary, being from minority communities for the first time in history? This sends a very strong message to Britain and to the world about equal opportunity and how we will put out the hand of friendship. Congratulations.
James Cleverly: Thank you very much. I will take that.
Q249 Geraint Davies: Secondly, I very much welcome the new tone you are showing in terms of mutual trust and good will as a way forward to broker deals. I have to say that it is very refreshing after a lot of sabre-rattling and no progress.
Moving on to the questions on Northern Ireland, the situation of course is that Britain voted for Brexit. Britain, as such, did not vote to leave the single market; they voted for Brexit. Of course, Northern Ireland did neither. It strikes me that Northern Ireland has enormous benefit in terms of being in the single market in terms of inward investment, both from the UK to have access to the single market, the biggest market in the world, and for foreign inward investment.
I wonder why the Government is not doing more to promote those opportunities to all the communities in Northern Ireland, alongside trying to negotiate with the EU for fewer border checks, so that there is easier trade from Britain in terms of logistics. We have talked about pork pies and this sort of thing before. Also, the British Government need to give the confidence to invest in the EU, in essence, through Northern Ireland to bring prosperity to Northern Ireland and help reduce some of the inflamed tensions we have between the communities.
James Cleverly: First of all, I am going to take slight issue with how you have defined how we voted. The UK voted as a single entity when it came to the referendum in 2016, and the UK’s collective decision was to leave the European Union.
Q250 Geraint Davies: If I may, I was talking about the political union versus the single market. People I have spoken to in Swansea who voted to leave said to me, “We want to be in the single market and the customs union, but we do not want to be under political control. We are happy to Brexit but we want to stay in the single market”. Maybe there is a bit of confusion out there, but there is certainly not clarity.
James Cleverly: I have looked back, because when I was a Minister at the Department for Exiting the European Union, there was a lot of conversation about what people did or did not vote for in the 2016 referendum. On one level the decision was quite straightforward; it was the decision on the ballot paper. I had a lot of people saying, “People did vote for the single market”, or, “They did not vote for this”. There was a point in time when most people had no idea what the single market was, what the customs union was and what the difference between the two was. They were asked whether they wanted to leave and the UK said, “We want to leave”. We as politicians and members of the Government have got to deal with the practicalities of that decision. We are doing that.
You make a good point about the importance of Northern Ireland’s economic prosperity, and I can absolutely assure you and anyone from Northern Ireland that is watching that we hold that very close to our hearts. It is part of the Government’s levelling-up agenda that every part of the UK sees economic growth, and we will be making decisions both in terms of Northern Ireland and in terms of the rest of the UK to make that a reality.
There are some businesses in Northern Ireland that are very happy with the protocol, but, as I say, there are some businesses that are really struggling. “Struggling” is the wrong word. Their business functions are being made either impossible or unprofitable because of the functioning of the protocol. I do not think any of us in politics would feel comfortable saying, “You are doing well, you are doing well, but frankly I am quite happy to watch your business go under because most of us are doing okay”.
In politics we always keep an eye out for the underdogs or the ones being least successful, and currently we are being told, and it is being recognised in Ireland as well as in the UK, that there are some types of business where it is becoming so logistically challenging that those businesses are just not able to continue conducting business. We have to stay focused on them as well as protecting the businesses that are able to transact.
Q251 Geraint Davies: Something like one in four businesses in the UK that were exporting to the EU have given up. Our trade with the EU is 15% down. Those businesses could relocate to Northern Ireland, and easily trade with the EU and make lots of money and help the economy. Why are you not encouraging that? We have signed the protocol. It is a legal requirement in international law. Why do we not make it work so the people of Northern Ireland can see the benefits of it, rather than moaning about it all the time?
James Cleverly: Again, even if there were a significant relocation of UK businesses to that particular part of the UK, that does not alter the fact that there are currently businesses that were transacting in Northern Ireland—UK businesses that had outlets in Northern Ireland or had business functions in Northern Ireland—that are seeing those business functions curtailed or even being forced to stop them. I do not think you are saying this, but I am uncomfortable with implying or allowing the perception that we care less for the businesses for whom the protocol does not work than the businesses for whom the protocol does.
Q252 Geraint Davies: My point is that we should maximise the trade between the UK and Northern Ireland by negotiating with the EU to say, “Can we reduce the border checks on pork pies?” or whatever it is, but in exchange we respect the fact we have legally signed the protocol and we want to make that work politically, in terms of the economic opportunities the single market brings to Northern Ireland, so that the people who resist it strongly, politically—the DUP and others in particular—can see that it is helping everybody. We can all work together and create a harmony in accordance with what you said earlier about having a new mood and brokering some real change and real opportunity without having to bang down the door and try to renegotiate an agreement when we signed one in international law already.
James Cleverly: Just because agreements are signed does not mean they can never be revisited or renegotiated. That is an important principle to be reminded of. The protocol envisaged evolution and amendment. That is written into the protocol.
I hear what you are saying about there being businesses and others that are very happy with the protocol, but I am reminded that 60% of people who identify themselves as nationalists, 75% of people who identify themselves as Unionists and 60% of people who identify themselves as from neither community believe the protocol should be changed and that there should be no checks on imported goods. The majority opinion in Northern Ireland agrees with what the UK Government is trying to do.
Geraint Davies: I just have one more question on this, because if we are genuinely wanting to resolve this problem and sustain the peace process, without a hard border in Northern Ireland—
James Cleverly: We are not having a hard border in Northern Ireland.
Geraint Davies: Obviously we would have one if—
James Cleverly: We are not having a hard border in Northern Ireland.
Q253 Geraint Davies: There is going to be a border one way or another, is there not?
James Cleverly: We are not having a hard border in Northern Ireland.
Q254 Geraint Davies: Are the Government willing to reconsider our economy reconverging on the single market to make it easier? Basically, in terms of the people in Northern Ireland for whom you have just quoted all of these figures, the majority did not want to leave the single market; they did not even want Brexit. They have been forced into this now, and now it is all, “Isn’t the protocol awful?” We can sort these problems out.
James Cleverly: I am far from convinced that rearguing the debate of 2016 and 2017 is worthwhile.
Q255 Geraint Davies: I am talking about being in the single market, not Brexit. Will you accept that Brexit and leaving the single market are different things?
James Cleverly: The decision was made and we had a very protracted debate between 2016 and the 2019 general election. At the 2019 general election the disposition about leaving the single market and leaving the customs union was put to the British people and the result was comprehensive. That debate has been settled.
Geraint Davies: It is a complete mess.
Chair: You have had your say, Geraint. Unfortunately, it is not what the British people decided, nor for that matter is it to do with the fact we have left the European Union. I know you did not like that.
Geraint Davies: No. I am just trying to sort out the problem.
Q256 Mr Jones: I have a technical question, Foreign Secretary. I am interested in the interplay between the Retained EU Law Bill and the Northern Ireland Protocol Bill. As you know, the primacy of EU law is abolished by the Retained EU Law Bill. However, it is maintained and reaffirmed in the Northern Ireland Protocol Bill. At the same time, the Northern Ireland Protocol Bill turns off a large amount of legislation that applies to Northern Ireland as a consequence of annex 2. Would you accept that there is a possibility of a conflict between the provisions of the Retained EU Law Bill, on the one hand, and the Northern Ireland Protocol Bill, on the other? How would you propose to ensure that does not actually happen, or, if it does happen, that it is remedied?
James Cleverly: I recognise the challenge you put forward. On both of these issues, we are looking to make progress as quickly as we can, particularly with regard to the Northern Ireland protocol situation, as long as that progress is consistent with the positions I have set out earlier in terms of the maintenance of the situation in Northern Ireland.
We will meet the obligations under the Northern Ireland protocol. That was a commitment made at the second reading by the Minister at the Dispatch Box. The pledge that was made was that we will preserve the retained EU law necessary in upholding international obligations. Obviously, what we are looking to do through the changes to the Northern Ireland protocol is to change those international obligations.
Q257 Mr Jones: The fact remains that the Retained EU Law Bill does not apply to Northern Ireland. There is a carve-out for Northern Ireland, as you know, in that piece of legislation. You said earlier in this session that it is important that Northern Ireland’s place in the United Kingdom should be recognised, that it is as much a part of the UK as Essex or maybe even north Wales. Is there not a danger that we will have two different bodies of law applying in these two parts of the United Kingdom and is that a concern?
James Cleverly: The point you make is an important one, and that is why we are seeking to get resolution on the situation with regards to the Northern Ireland protocol, to ensure that there is a consistency of approach. On the point that Mr Mackinlay was making about the democratic deficit, these are things that we recognise are challenges and that we seek to address.
Q258 Mr Jones: It makes it all the more necessary, I would suggest, to have a proper solution to the problem you are currently negotiating with Mr Šefčovič.
James Cleverly: Yes, basically. This is why in getting that resolution there are two elements: getting it done promptly, but getting it done properly.
Q259 Chair: Mr Jones and Mr Fysh are both on the Public Bill Committee on EU retained law. They are dealing with those matters as that progresses. However, I would like to ask a very direct question: there will be no backsliding, will there, on the question of EU retained law? I mean that in terms of the date. Also, we are not going to get Government amendments coming forward. Can you tell us emphatically that is not going to happen?
James Cleverly: That Bill is a BEIS Bill. The FCDO and I will feed in our views about the importance of the points that Mr Jones has raised, but ultimately that is a BEIS Bill.
Q260 Chair: On the question of EU retained law, why does the Bill not cover primary legislation, in other words Acts of Parliament that are EU retained law? Is this not really a failure to capitalise on the benefits that we can derive? I have been dealing with this, having been on this Committee now for 38 years, and I have seen how all this legislation came about. The Government said in their response—and it was a good response—to our Committee report on 21 July that they regarded the issue of EU retained law as something that should be sunsetted, and furthermore that they wanted to make sure that it was sunsetted in good time. I just want to be quite clear, first of all, whether that can apply to Acts of Parliament and whether amendments could be brought forward.
There is really no difference. All this legislation came in, the European Scrutiny Committee looked at it and there was not a single change in any legislation as far as the Government were concerned, because we were under an obligation under section 2. That is now out of the way. For practical purposes, is it not fair and right to say that what came in through secondary legislation can go out through it, including Acts of Parliament?
James Cleverly: I hear the point you make, but it was a conscious decision not to bring primary legislation into scope, and that was based on a commitment made by the previous BEIS Secretary of State, who made a firm commitment to the principle of parliamentary sovereignty.
Q261 Chair: There was no sovereignty, Foreign Secretary, in the sense that, although it was described as an Act of Parliament, it was engineered and wiggled through by secondary legislation under section 2 of the European Communities Act 1972. There was no difference.
James Cleverly: I hear the point you make, but the principle we wanted to protect was, “In by primary, out by primary; in through secondary, out by secondary”.
Q262 Mr Baron: Foreign Secretary, let me put it to you that, despite your best efforts—you really are doing what you can—there is still no evidence of the EU recognising that it is being disproportionate in how it is handling the Northern Ireland protocol. At the end of the day, actions speak louder than words. The UK was part of the EU for 50 years. We have not watered down our regulations; if anything we have tightened them up, as you well know. Potatoes and plants, etc, from the UK have now all of a sudden become more dangerous. The whole thing is a nonsense.
Broadening this conversation out a bit, do you believe the EU is trying to punish us for Brexit in these negotiations, given that all the evidence would suggest that is the case? I mean punish us not just for Brexit but for the fact that a good proportion of the dire predictions about what would happen should we leave have been proved wrong. We have lower unemployment than any EU nation, record investment into the UK and trade deals much more abundant now we are out than when we were in. Is this the EU trying to punish? If it is, it is playing with fire.
James Cleverly: I cannot make a window into people’s souls. I do not believe that the people I am dealing with are trying to punish us. You make a really good point: the farms in the UK have not changed their practices; we have not suddenly become a more dangerous or toxic place; our commitment to workers’ rights, human rights and all of these things are undiminished.
It goes back to the point I discussed earlier. The challenge is that you have an institution that defines itself—it is said to us regularly—as a rules-based system. They hold those rules very dear. There is a natural default to looking at the theoretical risks, and that takes the thinking down a particular path to say, “I know this potato is fundamentally in all senses the same. The potato grown one metre north of the border is the same as the potato grown one metre south of the border. In theory, though, they are very different potatoes”. For us, it is the difference between the theory and practice.
Q263 Mr Baron: You talk about the EU, and some of us do believe you are being charitable in your description as being a rules-based system. I think you might have served there as well, but I served in Northern Ireland during the Troubles in the 1980s. Losses were incurred on both sides. Deep sacrifice was made there. It is a land where sensitivities to the use of language are very high indeed. We have got to be very careful because frustrations are boiling over at this point in time.
What effort are you making to make the case to the EU that they are playing with fire with this disproportionate hard-line approach to the Northern Ireland protocol? It could lead to violence on the streets in a major way if they do not actually sort themselves out and reciprocate, which is where I started, the good will that we are trying to apply to this problem in getting a negotiated resolution to the protocol.
James Cleverly: The hard-won peace that was secured in Northern Ireland is something of such enormous value. We have seen pockets of tension flare up in Northern Ireland in recent years. I believe very strongly, from the conversations I have had, that everybody wants to ensure we retain peace in Northern Ireland. That desire is absolutely genuine and it is heartfelt.
You served in Northern Ireland. I did not but certainly in my early career I was very conscious of the backdrop of the Troubles against the start of my military career. Anyone that had lived through those times, whether they served in Northern Ireland or anywhere else in the UK, would want to protect the peace that is currently enjoyed by Northern Ireland and the rest of the UK.
Q264 Mr Baron: Please do what you can to press upon the EU just how severe the situation is in Northern Ireland.
James Cleverly: Highlighting the tension that the application of the protocol is having within communities is incredibly important. Demonstrating that that tension is real is incredibly important, as is ensuring that we always stay focused on the desire to have institutions in Northern Ireland that have cross-community support and engagement, which is why we feel so strongly about getting the Assembly back up and running.
These things are absolutely at the heart of our decision-making, and we constantly remind the EU that this is not just a technical trade-related issue. This really does go to the heart of how people feel about their sense of identity and about Northern Ireland’s place in the UK and Northern Ireland’s relationship with Ireland. All of these things matter enormously and always have to be at the heart of our thinking when we are looking at the solutions to this.
Chair: I am conscious of the time at the moment. Could you give us another five to 10 minutes? We have questions to deal with on Gibraltar and also on the Falklands. They are fairly brief questions.
James Cleverly: I am being told off by my officials, but I am more than happy to.
Chair: I know you are. I will be telling them off if they try to take you away.
Q265 Margaret Ferrier: I would be as well, because Gibraltar is a very important British overseas territory. I am going to come on to the ongoing negotiations between Gibraltar and Spain to agree a good trade and border deal, bearing in mind the sovereignty of Gibraltar. The Government of Gibraltar have recently issued guidance to businesses in the event of a non-negotiated outcome. What are the chances, Foreign Secretary, of this happening?
James Cleverly: It is difficult for me to quantify that. On a personal level, I enjoy a very close relationship with the Government of Gibraltar. I have been a longstanding friend of Gibraltar collectively, and I know senior Ministers there personally. They know, and I will let the Committee know, that I take the sovereignty of Gibraltar incredibly seriously. The relationship between Gibraltar and the UK is incredibly important. Of course, the military links we have there are absolutely key, and they know that I and the UK Government will always negotiate with those interests close to our hearts and at the forefront of our minds.
Clearly we would much prefer to not have a non-negotiated outcome. I met about a month ago with Foreign Minister Albares from Spain. We had some quite intensive conversations about this. Again, the officials are speaking regularly with both the Gibraltarian Government and the Spanish Government about resolving this.
I do not want to put a number on it because I would be at best guessing, but we have distilled down to a relatively small number of outstanding issues and will continue negotiating on those with a desire to get a negotiated outcome, because that would be in the best interests of the UK, the Gibraltarians and indeed Spain.
Q266 Margaret Ferrier: You mentioned that you had been in touch with officials. How often are you actually in contact with the Chief Minister and his negotiating team? Was that a while ago when you had a meeting with him?
James Cleverly: The last time I had a face-to-face conversation with the Chief Minister was in October, if I remember rightly. I would need to double-check the dates, but we do co-ordinate very regularly. I am reminded they are actually part of our negotiating team and they did agree the mandate.
Q267 Margaret Ferrier: If we get to the point where there is no deal, what contingency plans do you have for Gibraltar if a deal is not reached?
James Cleverly: It is legitimate to look at that as part of our thinking. We are trying to avoid an NNO, a non-negotiated outcome. We will, of course, continue to support Gibraltar. They are an important friend and part of the family. We will work to help make sure their economy is resilient, working to establish, for example, things like e-gates to make sure that, if there is not a negotiated outcome, the flow of people across the border is as quick as it is possible to be within those circumstances, ensuring that their fuel supplies—aviation, gas, diesel, petrol—are resilient, and of course continue to work closely with them in terms of expertise to help deal with it. As I say, this is not what we are trying to achieve. What we are trying to achieve is a negotiated outcome.
Q268 Margaret Ferrier: Yes, of course. That is what we all want. If that was the case, because you mentioned the economy, would the UK Government be providing financial support to the Rock?
James Cleverly: I do not want to go into the details of what might be available, because we do not know what might be needed. We will always ensure we speak regularly about the best way to support Gibraltar, but you will understand that, although we do think, are thinking and have been thinking about a non-negotiated outcome, the bulk of our effort and thought is about getting these things resolved. As I say, we will continue speaking with Gibraltar around what they would need if there were an NNO, but, as I keep coming back to, that is not what we are trying to achieve here.
Q269 Craig Mackinlay: The Falkland Islands have been to give us evidence in this Committee in October. They are saying that the rate of EU tariffs—42% for meat and somewhere between 6% and 18% for fisheries products—is causing them difficulties. Are we having negotiations with the EU to get them a little more within our tariff-free umbrella?
James Cleverly: I am reminded that the Falklands are not covered by the TCA, but we are conscious of this issue and we always act to support them in any negotiations with the EU. They are not formally part of the TCA.
Q270 Craig Mackinlay: Anguilla has had a lot of development funding. That has been lost after the UK’s EU exit. Are you likely to be replacing any of that funding from other UK sources, just as we have for other aspects where we have replaced what was our money recirculated through the EU, of course, with it not going past Go and losing out on the way?
James Cleverly: You pre-empted me. I was going to make the point that the money that was going to those overseas territories was actually money that was coming from us to the EU. We have provided nearly £100 million of funding to Anguilla since 2017. We will continue to give financial support to the overseas territories. Again, exactly what, how and when will be dependent on the specific needs of the overseas territory in question. Of course, we very much value our relationship with the OTs, we very much value their economic stability and we will continue to support them in a number of ways.
Q271 Craig Mackinlay: We all want our overseas territories to be able to stand on their own two feet as much as they possibly can with the benefits that nature has bestowed upon them. Has the Foreign Office been involved with the Falklands Government on the substantial oil and gas reserves that are just waiting to be turned on? There are a number of blockages that the FCDO could be unlocking, particularly in negotiations with financial, security and perhaps discussions with the Argentine Government. Is he aware of the potential that is out there?
James Cleverly: I am not going to pretend I am familiar with the details of the potential hydrocarbon reserves there.
Craig Mackinlay: Perhaps if you could offer me a meeting, we could close the discussion there.
James Cleverly: As you will know, I am always happy to have a conversation with you. We will have a late-afternoon coffee, perhaps, at some point.
Craig Mackinlay: We can close that there.
Chair: Social occasions are outside the remit of this Committee. I am very glad you have coffee with Mr Mackinlay, but I am going to make one last bid for Geraint Davies to ask a question about Cyprus. He is desperate to do it. He says it is good news and I want to hear him ask the question.
Q272 Geraint Davies: I just ask you this, Foreign Secretary, because I know you have signed a memorandum of understanding. As a member of the Council of Europe I put forward a resolution for the abidance by the United Nations convention in terms of the reunification of Cyprus. I was wondering whether, having signed this, this would mean there would be more energy from the UK in trying to get a single-island solution for Cyprus, and indeed for them to be able to exploit the mineral wealth around the island.
James Cleverly: The UK’s position on Cyprus has remained consistent and is unchanged. We do support a single-island solution. That has been our longstanding position on that. I reaffirmed that position when I spoke with the Foreign Minister earlier today, and we will work both in terms of our relationship in multilateral bodies and with Cyprus itself to pursue that as an aim.
Chair: Foreign Secretary, thank you for coming. It has been quite a long and at times quite a blunt session because there are real concerns. With a new Administration we need to know that we are on the same trajectory, on the same manifesto arrangements as the Government were elected on. The people of this country elected us as a Government on that basis. It is therefore a very serious matter if there is any deviation from it. On that note, thank you very much indeed for coming.