That this House takes note of the Report from the European Affairs Committee Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Scrutiny of EU legislative proposals within the scope of the Protocol on Ireland/Northern Ireland (5th Report, Session 2021-22, HL Paper 177).
My Lords, like others in this House, I spent many happy hours discussing the scrutiny of European Union documents as a member of the old European Union committees of the House before we left the European Union but, when we talk about the scrutiny of EU legislation applying now to Northern Ireland, we are talking about something very different. We are talking of the scrutiny by Parliament of EU legislative proposals which now or in the future will apply to Northern Ireland because, under the terms of the withdrawal agreement and the Northern Ireland protocol, Northern Ireland remains in the EU single market for goods; and we are talking about EU legislative proposals over which neither the UK nor the Northern Ireland Administration has had any proper say. There is a real democratic deficit here, and this concerns all members of the Sub-Committee on the Protocol on Ireland/Northern Ireland, which I have the honour to chair. Many members of that committee are speaking in today’s debate, no matter what their views on the protocol itself. I thank the staff of the committee, including the staff of the Committees Scrutiny Unit, for the invaluable help and advice that they have given us.
Under the protocol as it currently operates, more than 300 pieces of EU legislation set out in its annexes apply to Northern Ireland now and will continue to do so as they are amended or replaced. In the view of the committee, that legislation must be subject to detailed parliamentary scrutiny. Why? It is because, without that, important areas of law applying to Northern Ireland would go unscrutinised and possibly even unnoticed by Parliament. Such scrutiny therefore is, and will continue to be, a key priority of the committee. The report before the House this morning sets out the committee’s approach to this scrutiny work and its key findings and observations so far.
The report notes that the volume of documents requiring scrutiny has been significantly higher than anticipated before the protocol came into force. During the first year of its operation up to March 2022, the committee wrote more than 90 letters to government Ministers on more than 40 EU legislative proposals applying to Northern Ireland under the protocol. In the current parliamentary Session, the committee has so far written a further 50 letters on 27 legislative proposals. As outlined at paragraph 21 of our report, these cover a wide range of policy areas and are of considerable technical complexity, engaging with many government departments.
My Lords, I speak as a member of the main EU Select Committee. I warmly welcome the sub-committee’s report and I thank my fellow member the noble Lord, Lord Jay, and his colleagues for their hard work and the detailed and constructive recommendations in the report.
The Northern Ireland protocol has produced an unprecedented awkward situation whereby the laws of a foreign jurisdiction are to apply in certain respects to part of the United Kingdom—that is, Northern Ireland. That will include 300 laws, new laws and dynamic alignment whereby existing laws, when they are changed, will cause Northern Ireland to change its laws too. It is therefore extremely important, if we are to have EU law in part of the UK, that there be proper parliamentary scrutiny by the House of Commons, by the Northern Ireland Assembly and of course by this House. We cannot alter EU law but the scrutiny, as the noble Lord has said, enables us to understand the implications and bring what influence we can to bear. It is also important that EU legislators are aware of the specific circumstances of Northern Ireland and take them into account.
The committee has produced a plethora of practical and constructive recommendations to improve scrutiny at all stages, including pre-legislative consultation. I warmly welcome them but, call it what you like—accountability, transparency, glasnost—it can take one only so far. There remains the fundamental problem, as the Government’s reply says, of the democratic deficit. It used that phrase, as did the noble Lord, Lord Jay. This situation cannot be resolved simply by scrutiny.
The Government make an important point in paragraph 30 of their reply to the committee when they say that
“the imposition of EU law … was not a necessary consequence of”
Brexit, any more than Brexit
“required dynamic alignment, or the ‘backstop’. The imposition of EU law was a consequence of the EU’s unwillingness to accept other solutions … We need to see much more ambition from the EU to engage on the changes necessary to give Northern Ireland institutions … a meaningful role in shaping the rules applicable in Northern Ireland.”
My Lords, I am delighted to follow the noble Lord, Lord Lamont, and to acknowledge the good work and stewardship of our chair, the noble Lord, Lord Jay, and our staff. Our chair has been able to secure consent, agreement and compromise among the many opinions in our committee, based on the evidence presented to us in producing all of our reports so far. This report, as the noble Lord, Lord Jay, stated, deals with our examination of European legislation which deals with Northern Ireland. Our report stated:
“In view of the socio-economic and political implications of the Protocol for Northern Ireland, in particular in the context of its relationship with the rest of the UK, EU legislation applying to Northern Ireland must be subject to detailed parliamentary scrutiny.”
This will happen in our committee on an ongoing basis, and is the very essence of what our report under discussion is about.
The noble Lord, Lord Jay, rightly referred to the issue of democratic deficit, which has been continually raised by many people who have given evidence to the committee. There is no doubt that that democratic deficit has to be addressed and resolved through the ongoing negotiations—and, on their completion, I hope there is a formula to deal with that issue.
There is one matter that we raised in our committee’s report and which we subsequently wrote to the Foreign Secretary about, on 6 December: is an audit kept of such legislation on an ongoing basis? I recall that the Government demurred from providing us with a detailed answer on that specific point. We requested full disclosure by government and a detailed Explanatory Memorandum on all aspects. In our letter of 6 December, on the foot of the Government’s response to our report, we asked specific questions, and I hope that the Minister will be able to provide answers.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Ritchie, and I agree with so much of what she has said this morning. I too congratulate the noble Lord, Lord Jay, on his skilful and diplomatic chairing of the Northern Ireland protocol sub-committee. As the noble Baroness, Lady Ritchie, said, it is a committee with a wide range of views, and it is testament to the committee and its staff that, once again, it has produced such an important report of great substance. The sub-committee should also be congratulated, I believe, on carrying out its scrutiny function so effectively. It would be very welcome if the Government would now engage more proactively, and across all departments, as the noble Lord, Lord Jay, said, to ensure that the effective processes of scrutiny can be introduced across Whitehall.
The Northern Ireland protocol is far from perfect and, to use the well-worn phrase, many of us speaking in the debate today would not have wanted to start from here. But we are where we are and, for the sake of businesses in Northern Ireland, it is vital that we now make it work. When I was reading this excellent report and the House of Lords briefing note ahead of the debate, it was hard not to feel a sense of frustration, and even anger, on behalf of the people of Northern Ireland that so much time has been wasted in sorting all of this out. It is now nearly seven years since the EU referendum and over three years since the 2019 election, which was fought on the basis of getting Brexit done. These issues should have been resolved a long time ago. I appreciate that there is now a subtle change of mood music from the Government and a more business-like attitude to finally getting this sorted.
It is also welcome, as the noble Lord, Lord Lamont, said, that on becoming Taoiseach once again Leo Varadkar acknowledged a week ago that the implementation of the protocol
“was too strict and too rigid and that created real difficulties”.
My Lords, the valuable report we are debating, remarkably well presented by my noble friend Lord Jay of Ewelme, lifts the lid on a somewhat overlooked aspect of the Northern Ireland protocol and the withdrawal agreement with the EU: the scrutiny of single market legislation, which necessarily applies to Northern Ireland under the ratified terms of those agreements, but over which neither our Parliament nor Northern Ireland has a formal voice let alone a vote.
I speak as a member of your Lordships’ European Affairs Committee. This report was also submitted under its name, although you would not guess that from the Order Paper. I speak on my own personal behalf, and not that of the committee. Views expressed and questions posed are my own and not those of the committee.
It is surely a mistake to overlook this aspect of these agreements, which amounts to acceptance of what is often known in the jargon as “dynamic alignment” with single market legislation as it emerges down the years. That is a fact of life, whether we like it or not. We all—the United Kingdom, Northern Ireland and the EU—need to come to terms with it and mitigate its implications as best we can so that the democratic deficit does not become and ever deepening crevasse. Why so? Because it is very clear, from any reading of the withdrawal agreement and of the protocol, that that was what we signed up to and ratified in January 2020 and which is thus part of that rules-based international system which our Government purport to champion. Not even the Johnson and Frost negotiating duo have disputed this. It was not due to oversight, misunderstanding, draconian implementation by the EU, nor misrepresentation.
Moreover, despite the assertions of some, it is an integral part of every agreement with every third country which the EU has entered into which grants single market status to that state or to part of it—think of Norway, Iceland or Liechtenstein, or even Switzerland with its bundle of agreements. We should not delude ourselves into thinking that it ever was, is now, or will be somehow negotiable, nor that Northern Ireland has been uniquely picked upon. My first question to the Minister is: do the Government share that analysis?
My Lords, it is an honour to be a member of the Sub-Committee on the Protocol on Ireland/Northern Ireland under the chairmanship of the noble Lord, Lord Jay. I endorse everything that he has said and the report, and his calls for better scrutiny of EU regulations as they apply to Northern Ireland.
I pay tribute also to the staff of our committee who labour long and hard to analyse all these EU regulations and to formulate letters, and so on, to Ministers. We are indebted to them because I think no other body is doing this type of work anywhere in the United Kingdom in terms of EU regulation. Even when the Assembly in Northern Ireland met, unfortunately, regrettably—quite amazingly, in my view—it did not do this type of work.
We are dealing with a very serious issue: the scrutiny of over 300 areas of law which apply dynamically and directly to Northern Ireland, formulated and implemented by a foreign political entity, drawn up in its interests—not in the interests of the people of Northern Ireland—and imposed directly without any say or vote of any parliamentarian or elected representative of the people of Northern Ireland in Belfast or London.
These pieces of legislation cover a vast range of subjects—manufactured goods, agri-foods and so on. As we delve into them in our committee, it is very clear that many of these regulations will have long, far-reaching, fundamental and significant effects in terms of the divergence of law between Northern Ireland and the rest of the United Kingdom. Northern Ireland does more trade with the rest of the United Kingdom than with the Irish Republic, the rest of the EU and the rest of the world put together. It is absolutely vital that our economy is aligned with the rest of the United Kingdom. The protocol disrupts and ruptures that.
I understand that the checks we hear a lot about—the red and green channels—are currently the subject of discussion, though no one seems to be able to put any information into the public domain on where these talks are at. I ask the Minister, when he winds up, to give us an update as to what stage these talks are at. Are they at the technical stage? Are we engaged in political talks? Has the EU begun to address the issues the Government have raised in the Northern Ireland Protocol Bill and its explanatory documents? These are necessary and to be dealt with if we are going to get the Northern Ireland Assembly back.
My Lords, I take great pleasure in following the noble Lord, Lord Dodds, and I share in the congratulations to the noble Lord, Lord Jay, on his stewardship of the committee and to all of the committee staff. There is great consensus on that matter, if nothing else, in this House and in our committee. I congratulate him and all others associated with that.
In the first year, the committee has scrutinised or taken note of around 74 pieces of EU legislation covered by the protocol. That is 10 times more than the original estimate, suggesting that the democratic deficit is wider, and the divergence between the regulation of goods in Northern Ireland and in Great Britain is likely to be greater, than anticipated when the protocol was originally agreed. This will be of concern to this House, to the people of Northern Ireland and to everyone across these islands and beyond.
It is clear from the volume of material passing through our committee, and from the variability of material that we see from the Government, that engagement with Brussels needs now to be enhanced. The protocol, the withdrawal agreement and the trade and co-operation agreement, as well as the other EU-UK agreements, joint policies and ongoing co-operation, mean that our understanding of the EU’s thinking and planning, and our knowledge of its activities, need to be far better than when we were members of it.
We need to identify the legislative changes and policies that will or might come under the protocol earlier than we are currently doing. We also need to discover and understand the changes in the regulation of the EU’s single market and trade policy as early as possible. More broadly, we need to be much better tuned to the development of the EU’s justice, home affairs and human rights policy, as well as its common foreign and security policy and the recent moves to transform its state aid and industrial policy. In short, we perhaps need to look to the model of the Irish Republic, obviously a smaller entity than the United Kingdom, which has been very successfully able to track and influence UK government policy through the years. We now need to be able to perform that task towards the EU, the larger entity vis-à-vis ourselves, with the same rigour with which the Irish state has performed its core functions in its own national interest.
My Lords, I too thank the noble Lord, Lord Jay, for his astute chairing, and our clerk, Stuart Stoner, and his expert team for the brilliant job that they do. But, even with such expert scrutiny, there is a loss of democratic accountability—the “democratic deficit”—affecting Northern Ireland following Brexit. Surely the devolved institutions in Northern Ireland should have a much more direct role in the scrutiny of the EU rules that apply to them.
Boris Johnson and the noble Lord, Lord Frost, endorsed by Rishi Sunak, negotiated a deal making Northern Ireland an EU rule-taker, rather than an EU rule-maker, as it was before Brexit. Like Northern Ireland, Norway is in the single market but not in the EU—yet Norwegian Ministers and parliamentarians are able to scrutinise and achieve amendments to all draft EU proposals affecting Norwegians. These consultative rights for EEA members are important to overcome what would otherwise be their own democratic deficit over single market legislation. Norwegian Ministers say that this works well, so why not give similar oversight of the implementation of the protocol directly to the democratic institutions in Northern Ireland? But this is not only a matter for the European Union. Obviously, Norway is a sovereign state, and addressing this Brexit democratic deficit will require the UK Government to allow something different for Northern Ireland, compared with the rest of the UK.
The UK-EU Joint Consultative Working Group—JCWG—which meets monthly, is where the European Commission informs the UK about
“planned Union acts within the scope of this Protocol”
under Article 15. This is a point at which potential difficulties arising for Northern Ireland can be identified and accommodated in the EU’s final decisions. The UK Government should therefore establish formal structures to ensure that the views that they proffer through the JCWG take full account of the views of Northern Ireland Ministers, MLAs, officials and stakeholders. Preferably, Northern Ireland representatives should have direct consultative rights within the JCWG.
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In our report, we note that the Government in turn have an obligation to facilitate such scrutiny. We welcome their commitment to do so through the production of explanatory memoranda summarising EU legislation applying to Northern Ireland, including, when requested by the committee, on EU delegated and implementing Acts, and by providing prompt responses to follow-up correspondence from the committee.
However, the report stresses that the Government need to go further. We argue that any entirely new EU legislation within the scope of the protocol of which the EU has informed the UK should automatically be deposited in Parliament for scrutiny at that stage; that the Government should deposit draft EU proposals that are relevant to the provisions of Article 2 of the protocol on rights and individuals; that the Government must also ensure that any other EU legislative proposals with significant implications for Northern Ireland in the context of the protocol are promptly deposited in Parliament; and that the Government need to establish formal mechanisms for prompt communication to Parliament of information received from the UK in the UK-EU joint consultative working group on planned or adopted EU legislation falling within the scope of the protocol.
In their response to our report, which I welcome, the Government went part-way to meeting those points, but there is more work to be done to ensure that their facilitation of parliamentary scrutiny is properly comprehensive. That is the responsibility of all government departments, whose contributions so far have been—how shall I put it?—varied. Some are good, some less so, but, as I mentioned recently to the noble Lord, Lord Benyon, I commend Defra on the quality of its work.
What update can the Minister provide on efforts to enhance the Government’s facilitation of parliamentary scrutiny of EU legislation applying to Northern Ireland under the protocol? In particular, what is his response to the committee’s calls for the Government to maintain and publish an audit or log of all EU legislation applying to Northern Ireland under the protocol that gives rise to issues of regulatory divergence between Northern Ireland and Great Britain?
I am of course conscious that the Government are in the midst of talks with the EU about the protocol, and conscious too that the Northern Ireland Protocol Bill remains before the House. However, we stress that the Government continue to have an obligation to set out to Parliament the full implications of EU legislation applying now to Northern Ireland under the protocol, and that they must set out as a minimum the views on each proposal expressed by the Northern Ireland Executive, when they are functioning, as well as the other devolved Administrations; the Government’s assessment of the merits or otherwise of the proposal; whether the proposal will lead to regulatory divergence between Great Britain and Northern Ireland, and the practical implications of that; what steps the Government are taking to address such regulatory divergence, including considering the case for introducing equivalent measures in England or Great Britain, according to the extent of the Government’s powers of competence in each case; the impact, if any, of the proposals for Northern Ireland’s participation in the UK’s free trade agreements; the relevance and impact of the proposals for Northern Ireland’s participation in UK common frameworks, and how common frameworks intersect with the protocol; whether and how EU legislation will be implemented in domestic law; and what consultation has taken place with business representatives and other key stakeholders on the impact of EU legislation, and whether a regulatory impact assessment has been undertaken. Will the Minister tell us what steps are being taken to ensure that this information, as a minimum, is set out in future in government Explanatory Memoranda?
As well as liaising with the Government in relation to this work, the committee attaches high priority to engagement with other committees of this House and of the House of Commons, with the Northern Ireland Assembly and the Northern Ireland Executive, and with key stakeholders who stand to be affected by EU legislation applying to Northern Ireland. Given the Northern Ireland Assembly’s democratic mandate to represent the people of Northern Ireland, the committee’s engagement with it is particularly important, and I express the hope that difficulties over the protocol can be resolved so that the Assembly and the Executive are once more able to function and to offer their own unique perspectives on the implications of these issues for the people and communities of Northern Ireland that they represent.
A key aspect of that engagement is of course with the EU itself. As I mentioned earlier, the committee has previously drawn attention to the democratic deficit under the protocol as negotiated, agreed and ratified by the UK and the EU, in that significant aspects of EU law, with wide-ranging political and economic implications, apply to Northern Ireland subject to neither the UK Government’s participation in the EU institutions nor to consent from parliamentarians at either Westminster or Stormont. The EU needs to do more to enhance transparency around the application of EU law to Northern Ireland; to take account of the impact of EU law on Northern Ireland’s particular circumstances; and to engage with Northern Ireland stakeholders at an early stage, to give them a voice on the application and implications of such legislation.
In our report, we concluded that the EU should explicitly state whether a proposed EU legal Act engages the UK’s obligations under the protocol; the basis on which such legislation should apply to Northern Ireland; and how the EU has taken into account Northern Ireland’s particular circumstances in the application of the legislation in question. I conclude, as does our report, by stating:
“In the context of the ongoing discussions between the UK and the EU on the future of the Protocol, all sides have a continuing obligation to ensure that the operation of the Protocol … takes into account the delicate balance between North-South and East-West relations as provided for under the Belfast/Good Friday Agreement, and to demonstrate how it is compliant with that Agreement in all its Strands.”
I beg to move.
That is of course the problem at which the Government’s stalled protocol Bill was partly aimed. These are very important points in the Government’s reply to the committee because they are frank, and they are saying that it is not just the sometimes-alleged intransigence of unionist politicians but also the inflexibility of the EU that has been holding things up.
The reply does not mention the issue of cross-community consent, which would obviously be outside the terms of reference of the committee, but that consent has been an important part of democracy in Northern Ireland ever since the Good Friday agreement. Its absence might well be regarded by unionists as a most important part of the democratic deficit. It would be good to know from the Minister today what more the Government think can be done to fix—if fix is the right word, or if it is possible—the democratic deficit. Is this just some minor constitutional outrage that eventually we have to learn to live with? Do the Government see the dual regulatory regime, as has been hinted, as helping to solve this problem? How would it do that, when for some people that would be opting out of the direct imposition of EU law? Is that practical and would it really be acceptable to the EU?
Mr Varadkar said recently that perhaps the EU’s interpretation of the protocol had been too strict. That sounded as though the EU might be prepared to be more flexible but, almost immediately, his words were qualified by the Commission. We read about the progress that has been made with proposals for red and green channels, potentially minimising checks on goods going from GB to Northern Ireland. This is very welcome and might help to stop the artificial diversion of trade, which weakens the economic link between GB and Northern Ireland and undoubtedly alarms unionists, but it would still leave the political problem.
We are all anxious to see power-sharing back—to have the Assembly and Executive back. It would be good, if possible, to welcome President Biden to the Good Friday anniversary. I recognise that the Government have a difficult job but, as things stand, it is very difficult to see where the landing zone is going to be.
On the issue of regulatory divergence, does the Foreign Office have overall responsibility for monitoring such divergence? How does the Foreign Office, with the Cabinet Office and the NIO, as well as other government departments and the Northern Ireland Executive, monitor and log such divergence, and above all its impact? Do the Government have a dedicated divergence unit and, if so, where is it based and what are its functions? It is important that the Minister provides us with answers today, while ensuring that he has a little word in the ear of the Foreign Secretary, so that he will be able to come and give evidence to our committee in the short term.
Undoubtedly, we have to set the report in the context of the overall UK/EU negotiations, which are ongoing. I hope that there is a negotiated settlement that will make the protocol Bill redundant. In my view, it should never have been brought forward for debate, as the clauses remitting the cancellation of a large part of the protocol were seen by many as provocative and belligerent. The only way to deal with the issues, including those raised by the pharmaceutical industry on medicines two days ago at our committee, is negotiations. As the pharmaceutical industry said to us, those issues emerged from Brexit but are logistical and technical, so they require a detailed, negotiated outcome.
I hope there is a restoration of the political institutions in Northern Ireland, because the people are crying out for that. They are crying out for help on a wide range of issues and can no longer wait; they want that restoration to take place quickly. I fully support our report and look forward to our further discussions on many other issues over the next few months.
This indication of greater flexibility is very much to be welcomed. But Brexit was a British decision, so we really should not expect our EU partners or the Government in Dublin to have to sort it out.
In my remaining remarks, I will raise a number of specific points, some of which have already been raised by the noble Baroness, Lady Ritchie, on the scrutiny of EU regulations by this Parliament. The first is on the Commission’s non-paper on engagement with Northern Ireland stakeholders and authorities. That paper contains several proposals for initiating a more structured approach for dialogue. Can the Minister say whether the Government are looking at some of these proposals with a view to implementing them?
The Minister will know, as the noble Lord, Lord Jay, has already said, that the sub-committee wrote to the Foreign Secretary on 6 December last year about the proposal of creating a log of regulatory divergence. That seemed to me like a very realistic and sensible proposal. Can the Minister say in his concluding remarks whether this is something they are now actively considering?
I worked for 10 years as a policy adviser and then press secretary in the European Parliament. For three of those years, I worked as an adviser on the research and energy committee. I know just how much work was done influencing the course of legislation at the drafting stage. Information and access were key elements of this. Can the Minister say what thought has been given to assisting Northern Ireland businesses at a much earlier stage of the EU legislative process, especially given that Northern Ireland no longer has MEPs to be involved in these very important early stages of drafting legislation?
In conclusion, as the noble Baroness, Lady Ritchie, has said, I feel that the continuing lack of a Northern Ireland Executive and Assembly is a tragedy at this time. A strong, functioning Assembly and Executive could have done so much to provide necessary scrutiny and oversight of EU legislation. As we approach the 25th anniversary of the Belfast/Good Friday agreement, I hope we can finally move on and make genuine progress.
The issue then is what can be done to mitigate the democratic deficit. Quite a lot is in our own hands and could and should be dealt with straightaway. First, we could reverse our singularly unwise decision to block the Commission’s intention to open in Belfast a subordinate office to its London office. This sub-office would provide early-stage access to emerging EU single market legislation to the whole of Northern Ireland’s civil society—the Executive, Assembly, parties, trade associations, NGOs and many others—and the opportunity to get through to Brussels the implications of its proposals for Northern Ireland. This is surely better than having to rely on periodic visits by EU officials based in Brussels or London.
Secondly, and in addition, there could be a clearly defined, dedicated section of the UK’s mission in Brussels. Its job would be to ensure that the EU’s institutions—not just the Commission but also the Council and the Parliament—fully understand the implications of emerging single market legislation for Northern Ireland and, so far as possible, take them on board. My second question to the Minister is: will the Government take those two steps which are entirely under their control? Beyond those steps, there are more complex issues, which may need to be taken up in the review of the protocol in a couple of years’ time, given the difficulty of raising them during the present fraught process of negotiations over the protocol—although all would much better be addressed sooner than that.
There need to be processes by which the views of the Northern Ireland body politic—the Executive, Assembly and parties—have some kind of voice to and links with all parts of the EU institutions with actions affecting Northern Ireland’s involvement in the single market. This could include the UK/EU parliamentary grouping, the European Parliament more widely, the Council and the Commission. It would go well beyond, in intensity and frequency of meeting, the operation of the TCA machinery. Our aim should be to achieve for Northern Ireland a voice, if not a vote. My third question is: could the Minister, when he replies to this debate, say whether the Government’s thinking is moving into the terrain I have sketched out?
The checks are a symptom of the fundamental problem. The problem is that Northern Ireland is subject to a different regime in a vast range of areas over which the Northern Ireland Assembly, or this House, should have the ultimate say. Until that fundamental problem is addressed, we will not see the sort of progress we need to see to restore the Assembly, because you are asking unionist Ministers in Northern Ireland to implement a regime which is detrimental economically to Northern Ireland and constitutionally to its future as part of the United Kingdom. Unionist Ministers, and certainly those in our party, will not do that. I urge the Government to get on and deal with this as a matter of urgency.
In particular, I draw your Lordships’ attention to paragraph 88 of the report, which says that we have a “democratic deficit”. I would call it a democratic denial, because it is not just a deficit: there is no democracy in this area of laws that apply directly to Northern Ireland under the protocol. Paragraph 88 says:
“While steps to ensure parliamentary scrutiny of such legislation and to enhance Northern Ireland’s voice and influence”—
we have heard about this—
“in relation to their application are necessary, they are not themselves sufficient to resolve the issues to which the democratic deficit gives rise.”
This is absolutely correct. There is no point comparing this to Norway, because Norway has some final say on the implementation of EU rules, which apply to the whole of Norway. Our country, the United Kingdom, is now divided: this legislature deals with laws in Great Britain but the EU imposes laws on Northern Ireland. That cannot stand. I urge the Minister to tell his colleagues who are leading the negotiations to deal with the fundamental issues; we can then make progress towards the restoration of devolution.
Our engagement with the European Parliament will need to be far better, far more technical and more consistent. This is particularly true for the protocol, but the lessons have much wider application. On balance, our footprint in Brussels should increase, not decrease, as we seek to engage and understand and, in so doing, better manage our relationship with our largest trading partner. We made great errors in our negotiation on the withdrawal agreement because, frankly, we were not on top of our game and too little expertise was diffused across Whitehall. We have learned much since, but those lessons need to be embedded. We cannot afford to make similar mistakes again.
On our legislative scrutiny, it occurs to me that, in due course, there might be merit in a working relationship under the British-Irish Council, which my late friend Lord Trimble did so much to place at the heart of strand 3 of the Belfast/Good Friday agreement in 1998, when many thought that it was a slightly quixotic enthusiasm of his, although, in retrospect, it has turned out to be of the greatest significance in very different and changed circumstances. The British-Irish Council has seen too little activity and has too often been too easily dismissed during the negotiations over the protocol and even, at times, in this House.
In our scrutiny of EU legislation affecting the protocol, there would be real benefit now in co-operative work with the Northern Ireland Assembly, this House and the other place. This would help to address, in part, the democratic deficit that so many from across many different sides of the divide here identified, and it would bring together local expertise with the resources of this House and our expertise in, and experience of, scrutiny and engagement with Whitehall. The Belfast/Good Friday agreement specifically promotes interparliamentary links and co-operation under the British-Irish Council in strand 3. We should pay attention to how the institutions of the Belfast agreement can help us to address some of the challenges that we face. We must protect that agreement, and it can help to protect our national interests in the same way.
Meetings of the joint committee have already seen the First Minister and Deputy First Minister, or their nominees, invited to participate in the UK delegation where the joint committee discussed the protocol. But there is currently no formal mechanism for representation from the devolved Governments in the UK to participate fully in the UK delegation to meetings of the UK-EU joint bodies. The UK Government should therefore commit to raising the status of the Northern Ireland First Minister and Deputy First Minister from invited observers to ex officio members of the UK delegation, where UK-EU bodies are discussing matters relevant not just to the protocol but to devolved competence. There should also be direct consultative avenues for Members of the Legislative Assembly—MLAs—of Northern Ireland with the European Parliament. These are practical and common-sense solutions to a real problem that, quite understandably, exercises unionists. I hope that UK Ministers, the Irish Government and the European Union will support them.