[Relevant documents: First Report of the Northern Ireland Affairs Committee, Session 2019–21, Unfettered Access: Customs Arrangements in Northern Ireland after Brexit, HC 161; and the Government Response, Session 2019–21, HC 783; Oral evidence taken before the Northern Ireland Affairs Committee on 6 January, 10 February, 24 February, 17 March, 28 April, 26 May and 16 June 2021, on Brexit and the Northern Ireland Protocol, HC 767; Oral evidence taken before the Northern Ireland Affairs Committee on 23 June 2021, on the Work of the Secretary of State for Northern Ireland, HC 264; e-petition 573209, Trigger Article 16. We want unfettered GB-NI Trade; Oral evidence taken before the Petitions Committee on 22 February 2021, on the movement of goods between Great Britain and Northern Ireland, HC 1232]
Before I call the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), I have to make a short statement about the sub judice resolution, which repeats the position taken on these matters yesterday.
Mr Speaker has been advised that there are active legal proceedings on the legality of the Northern Ireland protocol and active legal proceedings and open inquests in relation to historic troubles-related deaths. I am exercising the discretion given to the Chair in respect of the resolution on matters sub judice to allow full reference to the challenge to the Northern Ireland protocol as it concerns issues of national importance. Further, I am exercising that discretion to allow limited reference to active legal proceedings and open inquests in relation to historic troubles-related deaths. However, references to these cases should be limited to the context and the events which led to the cases but should not include details of the cases themselves nor the names of those involved in them. All hon. Members should, however, be mindful of matters that may be the subject of future legal proceedings and should exercise caution in making reference to individual cases.
That this House supports the primary aims of the Northern Ireland Protocol of the EU Withdrawal Agreement, which are to uphold the Belfast (Good Friday) Agreement in all its dimensions and to respect the integrity of the EU and UK internal markets; recognises that new infrastructure and controls at the border between Northern Ireland and the Irish Republic must be avoided to maintain the peace in Northern Ireland and to encourage stability and trade; notes that the volume of trade between Great Britain and Northern Ireland far exceeds the trade between Northern Ireland and the Republic of Ireland; further notes that significant provisions of the Protocol remain subject to grace periods and have not yet been applied to trade from Great Britain to Northern Ireland and that there is no evidence that this has presented any significant risk to the EU internal market; regards flexibility in the application of the Protocol as being in the mutual interests of the EU and UK, given the unique constitutional and political circumstances of Northern Ireland; regrets EU threats of legal action; notes the EU and UK have made a mutual commitment to adopt measures with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible; is conscious of the need to avoid separating the Unionist community from the rest of the UK, consistent with the Belfast (Good Friday) Agreement; and also recognises that Article 13(8) of the Protocol provides for potentially superior arrangements to those currently in place.
Thank you for that statement, Madam Deputy Speaker, and I would like to record my thanks to the Backbench Business Committee for granting time for this debate. I am also very grateful that so many right hon. and hon. Members have put in to take part in it. I believe that this is a debate of significance, and at a time of significance.
The hon. Gentleman makes a very important point. Is it not significant that since the protocol came into operation, there has been a dramatic increase in imports from the Irish Republic into Northern Ireland and a fall in trade between GB and Northern Ireland? Indeed, Irish Ministers have boasted that one reason for having a delay in further border checks is to encourage further diversion of trade towards the Irish Republic.
I could not be more grateful for that intervention, and I will amplify the points that the right hon. Gentleman makes, because he is absolutely right. Have no doubt that there has been and continues to be diversion of trade due to the protocol. Article 16 exists in order that either party can take unilateral action to prevent that.
The Central Statistics Office Ireland reports that Republic of Ireland exports to Northern Ireland in the first four months of this year increased by 25% and by 40% relative to the first four months of 2019 and 2020. Northern Ireland exports to the Republic increased by 59% and 61% on the same comparison. Some are heralding that as the birth of an all-Ireland economy, but that is wholly contrary to the letter and spirit of the protocol.
The motion in my name continues by noting that
“significant provisions of the Protocol remain subject to grace periods and have not yet been applied to trade from Great Britain to Northern Ireland and that there is no evidence that this has presented any significant risk to the EU internal market”.
Those grace periods, applying to chilled meats, medicines and the requirement of export health certificates, are intended to lapse in the coming months. The UK Government may choose to extend them, as we already have, with or without the EU’s permission, and they would be justified in doing so because the grace periods are not doing any harm, but that is not a long-term solution.
The Irish Minister for Foreign Affairs, Mr Simon Coveney, says that the grace periods exist
“to give supermarkets in particular, the opportunity to readjust their supply chains to adapt to”
what he refers to as “these new realities”. I am afraid that confirms in the minds of many that the protocol is being used to create diversion of trade.
Sometimes, over the course of this, the view is taken in the EU, or even in Ireland, that somehow the rest of the UK, or Great Britain, has no regard at all for the status of Northern Ireland in the United Kingdom. May I just read back to my hon. Friend two facts from a recent poll, which shows that to be completely wrong? When asked whether it is unfair to Northern Ireland that it is treated differently from the rest of the UK, over 50% of the residents from the whole of the United Kingdom said, yes, it was unfair. The second question, which is really important, was: how important or unimportant is it that Northern Ireland remains a part of the United Kingdom. Again, well over half—53%—said “important”. Interestingly, that is a margin of 41% over those in the United Kingdom who said it was unimportant. We want Northern Ireland to remain a part of the United Kingdom.
My right hon. Friend puts down an important marker. We can dismiss any idea that the United Kingdom as a whole is not interested in the interests of Northern Ireland or in Northern Ireland remaining part of the United Kingdom. That is an established fact and he has dealt with that very capably.
In conclusion, the world is watching how the EU is dealing with the United Kingdom. The UK will offer agreement on what the problems are and how they must be resolved. Together, the EU and the UK can look for common ground about how to do so; otherwise the rest of the world will see that the grounds for invoking article 16 have indeed already been met, and action will have to be taken.
I congratulate my right hon. and hon. Friends on securing this debate today and on giving Members the opportunity to express their views.
For people in Northern Ireland, the political and economic stakes could not be higher, as the protocol presents the greatest ever threat to the economic integrity of the United Kingdom. The rigorous implementation of the protocol that some anti-Brexit parties in Northern Ireland have called for would be bad for consumers and bad for business. It would be socially disruptive, economically ruinous and politically disastrous for Northern Ireland. As Lord Frost has repeatedly pointed out, the Northern Ireland protocol in its present form is unsustainable, and it needs to go.
Over the last 50 years, if we have learned anything in Northern Ireland it is that, if our political arrangements are to last, they will require support from right across the community, and there is not a single elected representative in any Unionist party who supports the Northern Ireland protocol. The Government have promised that they will publish their plans for the future of the protocol before Parliament rises for the summer recess, and that cannot come a moment too soon.
Much has been said about how we got here, but, today, I want to set out where we need to go from here. My party will not prejudge what the Government have to say, but I want to make it clear what any new approach needs to achieve. That is why, today, I am setting out seven tests that I believe are important for any new arrangements. Our tests are grounded not in a Unionist wish list, but in promises that have already been made in one form or another to the people of Northern Ireland. It is not too much to ask that the Government stand by these promises.
First, new arrangements must fulfil the guarantee of the sixth article of the Act of Union 1800. That Act of Union is no ordinary statute; it is the constitutional statute that created the United Kingdom for the people whom I represent. The sixth article essentially requires that everyone in the United Kingdom is entitled to the same privileges and to be on the same footing as to goods in either country and in respect of trade within the United Kingdom. Under the protocol, this is clearly no longer the case. The House will be aware—you made reference to the legal challenge on this point, Madam Deputy Speaker—that the High Court has held that the protocol does not put the people of Northern Ireland on an equal footing with those in the rest of the United Kingdom. In defending their position, the Government lawyers made it clear that the protocol impliedly repeals article 6 of the Act of Union. That is a matter of grave concern to us, and it is a matter that needs to be put right.
On that point about goods moving from Northern Ireland to GB unmolested and unhindered, was my right hon. Friend as shocked as I was when Retail NI, Manufacturing NI, Ulster Farmers Union and haulage representatives confirmed before the Northern Ireland Affairs Committee this morning that from January 2022, they will have to put in place documentary evidence of what they are moving from one part of the United Kingdom to the other part of the United Kingdom? Moving those goods does no damage and places no impediment on the European single market. My right hon. Friend must be appalled by that requirement.
Sixthly, new arrangements should ensure that no new regulatory barriers develop between Great Britain and Northern Ireland, unless agreed by the Northern Ireland Executive and Assembly. That commitment was made in paragraph 50 of the joint report by negotiators from the European Union and the United Kingdom Government in December 2017. Our Government sadly failed to honour that paragraph when they concluded the Northern Ireland protocol. We expect that commitment, which was made by the Government, to be honoured.
On those last two points about no new regulatory barriers and the checks on goods going between GB and NI, will the right hon. Gentleman confirm, as it would be helpful for the House, that there were already checks on animal health, given that the island of Ireland was a single animal health zone? Is he saying that the checks that already existed pre-Brexit are not encompassed by his point, and he is talking about new checks that have come along as a result of us leaving the European Union?
The right hon. Gentleman is absolutely right. Of course we accept that checks that were in place before Brexit should continue, and goods that are proceeding on from Great Britain through Northern Ireland to the EU may of course have different arrangements. We object to goods that are moving from Great Britain to Northern Ireland being subject to new checks under the protocol.
Seventhly, new arrangements must preserve the letter and the spirit of Northern Ireland’s constitutional guarantee, set out most recently in the Belfast agreement, which requires in advance the consent of a majority of the people of Northern Ireland for any diminution in its status as part of the United Kingdom. Our consent was not sought for the diminution in our status and the repealing of a key element of the Act of Union that changed our status with the Northern Ireland protocol. To reduce the constitutional status to our having a say in the final step of leaving the United Kingdom would mean that, in effect, it is no meaningful guarantee at all. If the constitutional guarantee for Northern Ireland is to have any meaning, it applies not just to the question of whether we are part of a united Ireland or remain in the United Kingdom. The Belfast agreement is clear that it is about any change to the status of Northern Ireland within the United Kingdom, and our consent was not sought and has most certainly not been given.
In conclusion, there is no practical or pragmatic reason why arrangements cannot be put in place that satisfy those tests and prove no meaningful threat to the integrity of the EU single market. We require that Northern Ireland’s place within the UK internal market is restored and we expect that the Government will take steps to do that in line with the previous commitments that they have given, from the Prime Minister down. My party will assess any new arrangements against these seven tests. I hope that for the sake of the integrity of the United Kingdom and the people of Northern Ireland we will not be disappointed.
I thank my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) for instigating the debate. It is nice to see a mainstream debate on the affairs of Northern Ireland taking place on the Floor of the House.
Let us remind ourselves of two things at the start. Lord Frost confirmed to our Committee, the Select Committee on Northern Ireland Affairs, just a few weeks ago that he negotiated the protocol, he understood the protocol and he signed off the protocol. How people have interpreted one or two parts of it may be surprising, but it is not legitimate for the Government effectively to say, “This was new, it was an impost, it crept up on us.” This was a negotiated document between the two parties.
Without the protocol, there would still have to be checks. We are talking about the defence, for want of a better phrase, of an internal market and a single market. Those alternative arrangements, as some called them some little while ago, would, according to HM Revenue and Customs, be likely to be as, if not more, complicated and possibly more costly. For those who may be thinking that, if we get rid of the protocol, everything will go back to being normal, that will not happen. We are all in a new normal now.
This is important because there are a lot of concerns, predominantly among the loyalist community, that this is in some way a stepping stone to a united Ireland or a move to a border poll. Everybody, from the Taoiseach to the Prime Minister—at last week’s Liaison Committee, in response to a question from me—to those in Brussels and anywhere else, has to recognise that the integrity of Northern Ireland as an intrinsic and key part of the United Kingdom remains. The protocol does not change that constitutional balance one way or another.
I take the point just made by the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson). I have yet to be persuaded that anybody, in their heart of hearts, ever defines their sense of belonging or loyalty by invisible trading arrangements. Citizenship, a sense of belonging and a sense of nationhood are far more powerful and emotive than that.
To confirm the answer to the question which is being silently asked, there is no mechanism whereby Members can intervene on someone who is speaking virtually. I just ask for patience from hon. Members. Hopefully, we will only have three more days of this arrangement—we all hope.
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The purpose of the debate is for the House to agree on how the Government should approach the issues that have arisen in Northern Ireland since the UK left the European Union. I remind the House that the Northern Ireland protocol was part of the 2019 EU withdrawal agreement, not part of the trade and co-operation agreement, which was ratified only this year. It is the protocol that is creating strains on power sharing under the Good Friday agreement, pressures on political stability and an upsurge in tension between the two communities in Northern Ireland.
Let me just say what this debate is not about. There is absolutely no value in point scoring about past divisions and disputes that we have had in this House. That would just further undermine public confidence. This debate is about looking forward, about what we must now agree to do to set things right. The proposals I will come to are in the interests of the EU as much as they are in the interests of the UK.
The motion sets out
“the primary aims of the Northern Ireland Protocol of the EU Withdrawal Agreement, which are to uphold the Belfast (Good Friday) Agreement in all its dimensions and to respect the integrity of the EU and UK internal markets”
and states that
“new infrastructure and controls at the border between Northern Ireland and the Irish Republic must be avoided to maintain the peace in Northern Ireland and to encourage stability and trade”.
The motion then points out an indisputable fact—that
“the volume of trade between Great Britain and Northern Ireland far exceeds the trade between Northern Ireland and the Republic of Ireland”.
Why is this significant? In 2019, the Northern Ireland Executive found that over 90% of medicines, fruit and vegetables, books, clothes, household goods and baby equipment sold in Northern Ireland was arriving from other parts of the United Kingdom. In 2018, Northern Ireland sales to Great Britain were two and a half times greater than those to the Republic.
The protocol is clear: it is not intended to create what it refers to as “diversion of trade”. On the contrary, article 16 states:
“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.”
Diversion of trade as a goal can form no basis for the rebuilding of trust and public confidence in both communities in Northern Ireland. Article 6 of the protocol requires the EU and the UK to
“use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom”.
I regret to say that, thus far, there is little evidence to suggest that the Republic of Ireland or the EU are attaching any importance to that vital commitment, and that is what is destroying trust.
The motion then states that this House
“regards flexibility in the application of the Protocol as being in the mutual interests of the EU and UK, given the unique constitutional and political circumstances of Northern Ireland; regrets EU threats of legal action; notes the EU and UK have made a mutual commitment to adopt measures with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible; is conscious of the need to avoid separating the Unionist community from the rest of the UK, consistent with the Belfast (Good Friday) Agreement; and also recognises that Article 13(8) of the Protocol provides for potentially superior arrangements to those currently in place.”
That is the real point of the motion: that the protocol is only one solution to the challenge of avoiding a hard border in Ireland while also respecting the integrity of the EU and UK internal markets.
There always was more than one way to skin a cat, and the EU agreed to that in article 13(8). Unfortunately, the EU seems implacably opposed to any discussion about how a subsequent agreement under article 13(8) of the protocol could supersede the protocol in whole or in part. Paragraph 25 of the political declaration accompanying the withdrawal agreement also envisaged:
“Such facilitative arrangements and technologies will also be considered in alternative arrangements for ensuring the absence of a hard border on the island of Ireland.”
Sadly, the protocol was not superseded by the trade and co-operation agreement, but now is the time for the EU to accept that its application of the protocol is not achieving its legitimate aims. Either the protocol must be changed by agreement or the UK must exercise its sovereign right to jettison the whole thing as a fundamental threat to peace and stability in Northern Ireland and to the integrity of the United Kingdom.
The EU could start by agreeing to an expanded category of goods that are not at risk of onward travel to the Republic of Ireland. We already have an authorised trader scheme for supermarkets; that could also be expanded, creating far less paperwork than there is now and a permanent exemption from unnecessary sanitary and phytosanitary checks. The EU could also agree to allow non-EU-compliant UK products to be imported into Northern Ireland if they are not at risk of moving into the rest of the EU internal market. The question is whether the EU is capable of being flexible and pragmatic, or whether it will continue to insist on imposing its rules, whatever the cost to peace and stability in Northern Ireland.
The noble Lord, Lord Trimble, was one of the two leaders who won the Nobel peace prize for negotiating the Belfast/Good Friday agreement. He has proposed a new solution: replacing the protocol with a system of mutual enforcement. This would mean that the UK and the EU would each ensure and guarantee that goods travelling across the shared border would be compliant with each other’s standards. Light checks would occur, but away from the border, and both sides would share relevant data on exports.
That proposal would remove the need for direct EU jurisdiction over Northern Ireland; Northern Ireland would be under UK law and fully restored as part of the UK internal market. It would ensure the absence of any new infrastructure on the border itself, it would guarantee the integrity of the EU internal market and, most importantly, it would accord equal respect to the concerns of both communities in Northern Ireland in a way that the present protocol utterly fails to do.
The proposal has not yet been tabled by the UK Government, but my understanding is that they broadly support the sentiments of the motion. Ideally, the EU would accept its obligations under paragraph 25 of the 2019 political declaration and agree in principle that the protocol will be superseded by these pragmatic and practical proposals.
We must hope that the EU lives up to its own ideals. Article 8 of the treaty on European Union obliges the EU to
“develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness…based on cooperation.”
If the EU refuses in principle even to open these discussions, the UK will have no option but to resort to article 16 of the protocol and take unilateral action. The world is watching how the EU is dealing with the United Kingdom.
Secondly, any new arrangements must avoid any diversion of trade, and I welcome what has been said already. It is simply not acceptable that consumers and businesses in Northern Ireland are told that they must purchase certain goods from the EU and not from Great Britain. In this regard it is notable that article 16 of the protocol already permits the UK to take unilateral safeguarding measures to ensure that there is no diversion of trade, and the Government must do that.
Thirdly, it is essential that any new arrangements that are negotiated do not constitute a border in the Irish sea between Great Britain and Northern Ireland. In line with the Act of Union, there should be no internal trade border in the UK. Northern Ireland’s place in the UK internal market must be fully restored. Fourthly, new arrangements must give the people of Northern Ireland a say in making the laws that govern them. That guarantee is implicit in article 3 of protocol 1 of the European convention on human rights, which clearly states that where people are subject to laws, they should be able freely to express their opinion on those laws. Northern Ireland does not have that in relation to EU regulations being imposed on it. Fifthly, new arrangements must result in no checks on goods going from Northern Ireland to Great Britain, or from Great Britain to Northern Ireland. The Prime Minister gave that commitment on 8 December 2019, and it should be honoured.
We should remind ourselves that there are some—there will be none in this House, I know—who refuse to accept the referendum result on the Good Friday agreement itself, and have gone around saying, “Unless we get our way on the protocol and unless it is scrapped”. Let us pause there for a moment to say that there is no majority view in support of the scrapping of the protocol. Nobody by the same token is saying that it is perfect; there is scope for change and improvement. But let us not inadvertently fall into the trap of using this debate on the protocol as a Trojan horse to undermine the Good Friday agreement. Everybody knows that, without that bedrock, there can be no progress in Northern Ireland, and none that we have seen over the past several decades.
Business wants to be engaged. Let me say to the Minister, and I look forward to her summing up: let us have that investment conference. Let us maximise those opportunities. Invest Northern Ireland is dealing with 30 requests at the moment. The business engagement forum needs to be formalised with a set agenda and regular meetings.
Trust is so important here. My hon. Friend the Member for Harwich and North Essex talked about the need for the EU to change. I agree in many respects. We need to see flexibility on goods at risk. We need to see flexibility on the precautionary principle and the differential of how we use laws. It is either illegal unless it is made legal, or legal unless it is made illegal. The benefit of the extensions of the grace periods has illustrated that the single market does not collapse as a result of that. Common sense is required.
I am not here to act as an apologist for the EU, but from all my conversations with them I think the issue is one of trust. They still remain uncertain as to whether Her Majesty’s Government are intent upon implementing a reformed protocol using the offices of the Joint Committee. Without that trust or certainty, there can be no progress. We need to switch our mindset from negotiate or renegotiate, to reform and implement. Let us remind ourselves that the Vice President has no mandate to renegotiate. That would have to be given by the member states and any hope for that would come only if we see that trust rebuilt. I therefore urge the Government to have that joint investment conference, build on the trust and formalise business engagement.
The Select Committee heard today from two witnesses. Let me quote both of them. Aodhán Connolly, from Northern Ireland Retail Consortium said: “The most frustrating thing for business in Northern Ireland is we can see the solutions, we just don’t see the political will to do them.” From the Ulster Farmers’ Union, Victor Chestnutt said: “Solutions are sitting there.” Well, let us not just let them sit there; let us grab them. Let us make them work and let the twin benefits of access to the UK internal market and the European Union’s single market be that blue touch paper that will reignite and light a post-covid Northern Ireland economy where the benefits to business and to citizens can be fully felt.