To ask Her Majesty’s Government what assessment they have made of the impact of the Protocol on Ireland/Northern Ireland on recent political developments in Northern Ireland.
My Lords, our minds and that of the Foreign Secretary are, inevitably and rightly, focused on Ukraine at present, but we also need to debate other issues that matter greatly, including Northern Ireland and the protocol, which have their own rhythm and timetable—not least, of course, their electoral timetable—so I am delighted that we are debating the protocol this afternoon.
It is an honour to chair the sub-committee on the protocol in your Lordships’ House. It is not all that long ago that the noble Lord, Lord Caine, as a member of that sub-committee, was interrogating the noble Lord, Lord Frost, as the Minister with responsibility for the protocol. I am delighted that they are both taking part in this debate, and I look forward to discovering shortly whether their change of roles has led to a change of views.
I should also be grateful if the Minister could say to the Minister of State at the Foreign Office, James Cleverly, that the sub-committee, and I as its chair, look forward to his involvement with it over the next few weeks and months. The sub-committee on the protocol has in its membership Members of your Lordships’ House who have long-standing experience of and involvement in Northern Ireland and are actively engaged in its politics. I am glad that a number of the sub-committee’s members are taking part in today’s debate.
The sub-committee has tried not to reach a view on the merits of the protocol, on which there are different views, but to consider what the effects of the protocol are so far and what they might be, were it to be implemented in full. Nevertheless, the effect of the protocol on the political scene in Northern Ireland is plain for all to see, hence today’s debate.
The sub-committee on the protocol has six core tasks. The first is document-based scrutiny of EU legislation applying to Northern Ireland under the protocol, and over the past year we have written nearly 100 detailed letters to government departments on nearly 50 EU legislative documents applying to Northern Ireland. The second is scrutiny of the implications of domestic UK legislation and policy for Northern Ireland; we wrote to the Minister concerned at about the time of Second Reading and have recently written on the implications for Northern Ireland of the Subsidy Control Bill, the Nationality and Borders Bill and the Elections Bill. The third is scrutiny of the UK-EU bodies relevant to the protocol, including the Withdrawal Agreement Joint Committee, which met most recently on 21 February. The fourth is reviewing the impact of the protocol on UK-Irish relations, which has included meetings with the committees of the Oireachtas. The fifth is interparliamentary dialogue, including with the Northern Ireland Assembly; I stress here how much the sub-committee has appreciated and valued our interactions with the Assembly and with the Northern Ireland Executive. Finally, the sixth is monitoring the protocol’s political and socioeconomic impact on Northern Ireland, to which today’s debate is particularly relevant.
My Lords, this is the first time I have spoken as a Back-Bencher since I stepped down from the Government in December. I am glad to have the opportunity to do so now and offer my support for the approach that the Government and my noble friend Lord Caine have been taking.
As the Motion put forward by the noble Lord, Lord Jay, sets out—and as the work of his sub-committee has made clear, as he said—politics in Northern Ireland have come under ever greater strain since the start of this year. The tension created by the protocol obviously underlies the current difficulties, which stem ultimately from the destruction of the protocol’s moral basis caused by the EU’s attempt to put a vaccine regulatory border on the island of Ireland in January last year.
As has been said, the political situation is now very troubling. We do not have a First Minister or Deputy First Minister in post, and the Executive are effectively inoperative. The courts are looking at fundamental aspects of the protocol. It is by no means clear that a stable Executive can be established after the elections. In short, it is clear that there is political and societal disruption.
This situation plainly cannot be allowed to continue. There needs to be significant change. The protocol could have worked properly only with very delicate handling. It has not had it, so change must come. When it does, it must be in the direction of re-establishing full UK sovereignty and legal normality in Northern Ireland. That has to be the end goal. Reversion to this norm is the best way to provide long-run stability and properly protect the Belfast/Good Friday agreement.
Much the best way forward, of course, would be to renegotiate the protocol, as the Government have proposed, so that it can be supported across all communities in Northern Ireland and so that it respects all three strands of the Belfast/Good Friday agreement. I hope that the EU might yet do that in the new spirit of collaboration that currently exists over our common response to Russian aggression in Ukraine. However, if it does not do so, it will be perfectly reasonable for the Government to use the Article 16 safeguard provisions.
My Lords, I first thank and praise the noble Lord, Lord Jay, for securing this debate. I declare an interest as a member of the protocol sub-committee. Our chairman, the noble Lord, Lord Jay, has adequately addressed the main purpose, remit and terms of reference of our sub-committee: the scrutiny of EU legislation and the interrogation of the business and political interests that bear down on the protocol.
For me, the protocol and the political stability of the institutions in Northern Ireland are intertwined. Unfortunately, as a result of Brexit—of which the protocol is either the son or the daughter—we have had much political instability in Northern Ireland. Political negotiations will be the key. There is a need for political negotiations between the British and Irish Governments and the EU. There should be a separate negotiating process between the two Governments, who are the co-guarantors of the Good Friday agreement, to find some solutions. The Minister said to me in the previous debate on the Northern Ireland Bill that it was the Government’s intention to hold negotiations in the post-election scenario. I said to him then that it was my fear that we may not have institutions at that juncture on 6 May. It is vital for both Governments to get on with it.
I was opposed to Brexit. The protocol was negotiated by the UK Government and the EU, and I have to say that for a former Minister to decry that protocol, when he was directly involved in the negotiations, is a bit much. All that negativity impacted on our political discourse. As somebody who was directly involved in the politics of Northern Ireland and has talked to the public on the doorstep, I can say that they are just sick, sore and tired of it. They want to see a restoration of their political institutions and politicians dealing with health, education and the economy. They want politicians to work together to provide that vision: the framework that will lead to a healthy economy in this post-pandemic phase. They want people to help heal all our ills. They want to build a shared society and see the reconciliation that is reflected in the three-stranded approach of the Good Friday agreement. I hope that can come to pass. Please stop using an international agreement as a bogey person.
My Lords, I am a member of the sub-committee. We requested some assistance, through opinion polls, as to the current state of play—with all the limitations that we know about opinion polls. The February 2022 survey of Queen’s University, Belfast disclosed that 50% agree to the proposition that the protocol is on balance a good thing for Northern Ireland. The LucidTalk NI tracker poll carried out in January found that 36% thought the protocol was wrong and should be scrapped, 44% support the protocol but believe it should be reformed or adjusted, and 18% support and have no problems with it. The general picture is that the protocol is supported by perhaps two-thirds of the population, although a large section of those think it should be at least revised.
The problem is that the UK Government agreed to a solution for Northern Ireland which has two fundamental flaws. First, they agreed that the European Union could make laws directly affecting Northern Ireland but without a voice for its people. The second flaw is that they gave to the European Court of Justice, on which there is no longer even a UK representative, jurisdiction to pass judgment in infringement proceedings, or JRs, in certain areas which affect Northern Irish businesses and people, under paragraph 4 of Article 12.
The simplistic approach to these problems is to call for the scrapping of the protocol altogether but Article 16 permits unilateral safeguarding measures only if the protocol leads to
“serious economic, societal or environmental difficulties that are liable to persist”
or to “diversion of trade”. However, any action taken must be temporary—
“restricted with regard to their scope and duration”—
and limited to involving only the issues explicitly identified. Article 16 is not intended to allow either party to suspend provisions of the protocol permanently or in their entirety. I was surprised that the noble Lord, Lord Frost, suggested that it could be used this afternoon.
My Lords, I too congratulate the noble Lord, Lord Jay, on securing this short debate on an issue which, it appears, will continue to dominate Northern Irish politics for some time to come, at least until 5 May. I supported Brexit and maintain that leaving the European Union will serve the best interests of the United Kingdom in the years ahead. However, as a committed unionist, what I most certainly did not vote for was a dilution of our national sovereignty, with Northern Ireland cut off from the rest of the United Kingdom by a sea border signed off by Her Majesty’s Government. We are now forced to live under a different set of rules and regulations than Great Britain and we have no say over them at all.
Speaking in August 2020, Boris Johnson said:
“'There will be no border down the Irish Sea—over my dead body'”.
But he signed up for one in any case and, the last time I checked, the Prime Minister was very much alive and kicking. The question is: what do we do about the protocol? The answer is to engage—to engage, not to walk away.
The DUP’s decision to pull its First Minister out of the Northern Ireland Executive was a sign of political desperation as the Assembly elections edge ever closer. It was also incredibly selfish, foolhardy and damaging to local people’s lives in Northern Ireland. The fact that the DUP chose to collapse the Executive without knowing for certain whether my colleague Robin Swann, the Health Minister, had the power to make legally binding decisions over the future of Covid regulations tells you everything you need to know about that party’s priorities. It also left him with no long-term health budget to help Northern Ireland’s grotesque waiting lists, which are by far the longest in the United Kingdom.
I welcome the noble Lord, Lord Frost, who is in his place—as he says, as a humble Back-Bencher. Following his departure from the Government, I note that his replacement as the United Kingdom’s negotiator, Liz Truss, and her EU counterpart, Maroš Šefčovič, have reported a constructive atmosphere in the talks to resolve the problems the protocol created. Earlier this week my party leader, Doug Beattie, led an Ulster Unionist delegation including my noble friend Lord Empey, Jim Nicholson, a former MEP, and Lauren Kerr to meet Mr Šefčovič in Brussels. Future meetings are planned.
My Lords, I thank the noble Lord, Lord Jay, for arranging this, and the Government Whips for ensuring that we had time for this very important debate, alongside all that is happening in Ukraine, which is disastrous and devastating for all of us in this Room.
I endorse what my chairman and the other members of the sub-committee have said today—this is how we really feel about the Northern Ireland protocol. What is worrying is that it is not really working alongside the Good Friday agreement in the way that I feel it positively should be. Of course, we know that one of the problems with the Good Friday agreement—this is a lesson to us all—is that no timelines were written into it. That is no one’s fault; these things happen from time to time. Because of Brexit, which has been a difficult decision for Britain, Northern Ireland is just pushed off to the side, I feel—it is part of the United Kingdom, which is not just Britain.
Putting that to one side, the health service in Northern Ireland has long waiting lists and children have to go to Ireland to have operations, as do people who need heart treatment. Some education is also now being taken over by Ireland.
We ought to have change now—I gave the Minister notice of what I will say, but I know that he may not be able to give me a clear answer. We have to have a dedicated Minister who does not have a number of other portfolios; otherwise, we will not get negotiations going properly. This also has to come with a dedicated senior team that works both in Northern Ireland and here. This team should be in the FCDO or the Cabinet Office—my preference would be the latter, because I see that as the machinery of government—and the Minister should report directly to the Cabinet as and when it is necessary. That would ensure that these discussions continue, as they must, regardless of what is going on—especially after the elections, when we will, I hope, have institutions working alongside the new Parliament in Stormont. It is absolutely vital that the talking does not stop, because when we are not talking to each other, all sorts of things happen; it is really important. I refer to my great friend Jonathan Powell, who said this in his books and throughout the very difficult days in Northern Ireland.
My Lords, this is a short debate but it gives us, particularly those of us who live in Northern Ireland, the opportunity to once again warn of the increasing instability and anger in the pro-union communities there. On numerous occasions, the Government have been warned, here in this House, that the protocol was unsustainable and had to go. We said that it was incompatible with the Belfast/Good Friday agreement, and we warned that the institutions were threatened. The resignation of the First Minister was the inevitable consequence of what happens when unionists feel alienated.
The protocol, which was introduced with no consent from anyone in Northern Ireland, has left them feeling significantly disadvantaged, with their rights diminished and their very identity as citizens of the UK being whittled away. When I say “they”, I mean me too. Not a day passes without some new bit of bureaucracy being discovered, stopping a certain type of goods coming into Northern Ireland, or without a business in GB telling me that it cannot deliver now because it is no longer made worth while to send to Northern Ireland. We all know that the border checks are ridiculous: a huge effort of resources and time is put in to check what will be a tiny amount of goods going on to the Republic.
The fundamental and deeply worrying fact is that our union of Great Britain and Northern Ireland is being eroded. The Government’s own lawyers in the Belfast High Court said that the protocol impliedly and partially repeals the Act of Union, in so far as that fundamental law ensures unfettered internal UK trade. Of course, the Irish Government love the fact that more people are being forced to buy from the Republic, and diversion of trade patterns is happening. The Irish Government have no qualms about speaking up on behalf of the nationalist communities. As the Minister, the noble Lord, Lord Caine, said in this House on 13 September, the EU fundamentally seems to see Northern Ireland through nationalist eyes.
I join the tributes to the noble Lord, Lord Jay, for securing this debate and for his broader chairmanship of the Sub-Committee on the Protocol on Ireland/Northern Ireland, on which I am privileged to serve. I also join the tributes to the efforts of my noble friend Lord Frost in respect of recouping some of the ground lost during his period in office.
I wish to pick up on some of the matters referred to by the noble Baroness, Lady Goudie, in respect of the impact and tension between the protocol and the Belfast/Good Friday agreement. I hope that my noble friend the Minister will reflect on the conflict between those two and the impact on the ground. To what degree has he witnessed a change in the Commission’s understanding of the problem with the protocol from one centred on operational issues, as experienced by businesses, to one centred on political issues that relate to the compatibility of the protocol as presently designed with the Belfast agreement? The compatibility of the protocol as presently designed with the agreement puts at risk the very aim of the protocol, which is to uphold the agreement in all its parts.
As has been mentioned by many noble Lords and Baronesses, there are three strands to the agreement. We have known for some time that strand 3, which deals with the totality of relationships between these two islands, including between Northern Ireland and Great Britain, was at risk, as was highlighted in the UK Government’s position paper as long ago as August 2017. The risk to trade between Great Britain and Northern Ireland and the consequent problems for Northern Ireland consumers in general—for unionists in particular—is to be found in the failings of that strand. However, in consequence of that and the instability caused, we have a failure of strand 1—the devolved internal government of Northern Ireland—and, as a result of the protocol, further difficulties therefore with strand 2 on north-south, cross-border issues. All these of course have to be based on cross-community consent.
3:34 pm
20 of 33 shown
The sub-committee agreed an introductory report on the protocol last July, and we have since scrutinised individual aspects of the protocol against the backdrop of the continuing talks between the Government and the European Commission. We have written to Ministers on, among other things, medicines, the rights of individuals and the potential role of the European Court of Justice. We are now completing a report on the importance, in relation to Northern Ireland, of proper parliamentary scrutiny of European legislation. All members of the sub-committee are concerned at the application of European legislation to Northern Ireland without Northern Ireland or Great Britain having the chance to comment effectively before legislation is agreed.
In the course of this work, we have spoken to, among others, commercial interests in Northern Ireland, experts from the pharmaceutical sector in Great Britain, shipping interests, the Equality Commission for the Northern Ireland, the Northern Ireland Human Rights Commission and academic experts from a wide spectrum of political views. In a recent seminar, we also spoke to stakeholders from Northern Ireland and Dublin. One inescapable conclusion I have drawn from these contacts is that the protocol is already having an effect. The coming into effect of some aspects of the protocol, particularly on agricultural and veterinary products, has of course been put back but, in other fields, legislation is being passed by the European Union that is having or will have a marked impact on different sectors of life in Northern Ireland.
It is clear, too, that the protocol is affecting economic activity. For example, trade flows between Northern Ireland and Ireland are increasing. To some, this is a sign of the advantages of the protocol and a welcome consequence of Northern Ireland remaining in the United Kingdom’s single market at the same time as remaining a member of the European Union’s single market. To others, it is a matter of serious concern, adversely affecting businesses in Northern Ireland and Great Britain, for whom the extra bureaucratic burden of the protocol is just too great and leading to a diversion of trade that may justify the invocation of Article 16. Views differ, but the impact of the protocol is clear.
So it is not surprising that the protocol will be an important issue in the Northern Ireland elections on 5 May. Personally, I am glad to note from the communiqué of the Joint Committee’s last meeting that discussions between the British Government and the European Commission will continue, at least at a technical level, in the meantime. However, for an agreement to be reached, whether now or in future, clearly there will need to be—I deliberately put this neutrally—movement on both sides. My question for the Minister is simple: does he think that an agreement is achievable? If so, what is his best guess as to timing? I look forward to the debate.
Finally, we must also remember that the protocol is explicitly a temporary arrangement. It disappears in 2024 unless the Assembly wishes it to continue. That consent vote is important. It is entirely legitimate for the UK Government to have a view on it, and I personally think that view should be that it is not in the interests of Northern Ireland for this protocol, in this form, to continue beyond that vote. I will certainly support the Government in any action they take to re-establish stability and to secure Northern Ireland’s place in this United Kingdom.
Unless we break the terms of the treaty, we have to swallow our pride, acknowledge our mistakes and seek solutions with our EU counterparts. We have to address the democratic deficit and seek a voice in the making of EU legislation, and while allowing the European Court its fiercely protected right to be the sole arbiter of European law, that must be indirect: we should negotiate to use the arbitration mechanisms provided for in Articles 167 to 181 of the withdrawal agreement. The essential thing is that the protocol must be made to work.
The key to re-establishing momentum in the Northern Ireland political process is more engagement, not grandstanding with walkouts. Most of the problems relating to the protocol are political and will be resolved only with political solutions. I wish Liz Truss well in her endeavours to reach a positive outcome for the betterment of everyone in Northern Ireland and the United Kingdom.
That is why I say that the only way forward, besides our sub-committee, which is the only one that is doing full scrutiny now, is to have a dedicated Minister with a dedicated senior team that has an understanding of the issues, as well as perhaps someone from the Irish Government and the European Commission or Parliament. That is the way forward. They should report very regularly—not monthly but perhaps bi-weekly—to the Cabinet Office. The right funding and support should also be in place.
Northern Ireland people, who withstood over 30 years of bombs, shootings and appalling atrocities carried out by the IRA, and who have remained the most staunch supporters of our great country, now see their own Government give in, time after time, to those who wish to destroy Northern Ireland. When Sinn Féin brought down the devolved Government for three years in 2017, I did not see much abuse of Sinn Féin by our Government. They did not even hint at their disapproval of such vandalism, even when the Irish Government made it clear that the Sinn Féin demand of an Irish language Act be met before it would go back in—and now we are going to see that, although other parts of the agreement have not been met.
Just how long does the Minister think these negotiations are going to continue? They are clearly not going to get the EU to change its mind. Just how long are we going to have to put up with this?
Does he really think that the vote on the consent principle in 2024 that one other noble Lord referred to is fair? It is the only part of the Belfast agreement that is going to change the principle of consent to majority will, instead of the principle of co-operation and agreement across community consent.
I warn again that there are now demonstrations every week. There will rallies and campaigns in the lead-up to the election. Northern Ireland is in a fragile position and this Government have to recognise that time is running out, and it is running out now.
All three strands of the Belfast agreement are now in jeopardy because of a protocol supposedly designed to uphold the agreement in all its parts. Even the European Commission in its September 2017 principles—its response to the UK Government’s then position paper—stated as first principle:
“The Good Friday Agreement established interlocking political institutions which reflect the totality of the relationships on the islands of Great Britain and Ireland. The institutions, which provide frameworks for cooperation between both parts of the island and between Ireland and Great Britain, will need to continue to operate effectively.”
This protocol has clearly failed the test set by the UK Government. It has not won the necessary cross-community support in Northern Ireland and it has now failed the test set by the European Commission itself.