(3 years, 5 months ago)
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The Minister of State, Cabinet Office (Lord Frost) (Con)
My Lords, with the leave of the House, I will now make a Statement, which is being simultaneously made in the other place, on the Government’s approach to the Northern Ireland protocol.
The Northern Ireland protocol was designed to achieve a delicate balance between a number of different aims. It reflected a truly extraordinary compromise by the Government in 2019, driven by our steadfast commitment to the Belfast/Good Friday agreement in all its dimensions. Just over a year afterwards, we also agreed the trade and co-operation agreement, the broadest and most far-reaching such agreement ever struck. Together, these offered the building blocks of a strong, constructive partnership between the UK and the EU, as sovereign equals, yet we have not been able to unlock the potential of that new partnership, and the impact of the current protocol is at the heart of that.
There is no doubt that we have tried to operate the protocol in good faith. We worked throughout 2020 to finalise the areas left open by the protocol text itself, without of course knowing what the real-world impacts of those decisions on the ground would be. This year, we are planning to invest around £500 million in delivering systems and support services to operate the protocol. We have worked with business to help its preparations for the new trading arrangements, but nevertheless, as we have sought to operate the protocol, it is clear that its burdens have been the source of considerable and ongoing disruption to lives and livelihoods. We have seen reductions in supermarket product lines. We have seen more than 200 suppliers decide that they would no longer sell to Northern Ireland. We have seen difficulties not just on the famous chilled meats issue but on medicines, on pets, on movements of live animals, on seeds and plants, and on many others.
Indeed, nowhere are these problems more visible than in the fact that the Northern Ireland Executive conduct 20% of all the EU documentary checks on products of animal origin, despite a population of only 1.8 million people. These burdens will worsen, not improve, over time as grace periods expire, leaving businesses facing ever more unsustainable burdens. These impacts risk being felt in the fabric of our union too. All dimensions of the Belfast/Good Friday agreement need to be respected—that is, Northern Ireland’s integral place in our United Kingdom just as much as the north-south dimension of the agreement.
Yet there is a growing sense in Northern Ireland that we have not found the right balance, seen in an ongoing febrile political climate, protests and occasional regrettable instances of disorder, and strains within a power-sharing Executive already dealing with an unprecedented pandemic. We have worked with the EU to try to address these challenges. Some avenues for progress have been identified in certain areas but, overall, those discussions have not got to the heart of the problem. Put very simply, we cannot go on as we are. We have therefore had to consider all our options. In particular, we have looked carefully at the safeguards provided by Article 16 of the protocol. These exist to deal with significant societal and economic difficulties, as well as with trade diversion. There has been significant disruption to east-west trade, a significant increase in trade on the island of Ireland as companies change supply chains, and considerable disruption to everyday lives. There has also been societal instability, seen most regrettably with the disorder across Northern Ireland at Easter. Indeed, the false but raw perception in the unionist community of separation from the rest of the United Kingdom has had profound political consequences. These are very serious effects, which have put people, businesses, and the institutions of the Belfast/Good Friday agreement under strain.
It is clear that the circumstances exist to justify the use of Article 16. Nevertheless, we have concluded that it is not the right moment to do so. Instead, we see an opportunity to proceed differently—to find a new path; to seek to agree with the EU, through negotiations, a new balance in our arrangements covering Northern Ireland, to the benefit of all. It is in that spirit that today’s Command Paper outlines the new balance that we wish to find. It is a balance which needs to ensure that goods can circulate much more freely within the UK customs territory, while ensuring that full processes are applied to goods destined for the EU. It is a balance which needs to enable all in Northern Ireland to continue to have normal access to goods from the rest of the UK, by allowing goods meeting both UK and EU standards to circulate there. And it is a balance which needs to normalise the basis of the protocol’s governance, so that the relationship between us and the EU is no longer policed by the EU institutions and the court of justice. We should return to a normal treaty framework, similar to all our other international agreements, that is more conducive to the sense of genuine and equitable partnership that we seek.
Of course, we also recognise our share of responsibility in helping the EU to protect its single market. As part of this, we are willing to explore exceptional arrangements around data sharing and co-operation, and penalties in legislation to deter those looking to move non-compliant products from Northern Ireland to Ireland. I repeat that all this is entirely consistent with maintaining an open border, without infrastructure or checks, between Ireland and Northern Ireland.
These proposals will require significant change to the Northern Ireland protocol. We do not shy away from that. We believe that such change is necessary to deal with the situation that we now face. We look to open a discussion on these proposals urgently. At the same time, we must provide certainty and stability for businesses as we do so, so we believe that we and the EU should also quickly agree a standstill period, as it were, including maintaining the operation of grace periods in force and a freeze on existing legal actions and processes. This is to ensure that there is room to negotiate and to provide a genuine signal of good intent to find ways forward.
The difficulties that we have in operating the Northern Ireland protocol are now the main obstacle to building a relationship with the EU that reflects our strong common interests and values. Instead of that relationship, we are seeing one which is punctuated with legal challenges and characterised by disagreement and mistrust. We do not want that pattern to be set, not least because it does not support stability in Northern Ireland.
It is now the time to work to establish a new balance which both the UK and the EU can invest in, to provide a platform for peace and prosperity in Northern Ireland and to allow us to set out on a new path of partnership with the EU. We have today in our Command Paper set out an approach which we believe can do just that. We urge the EU to look at it with fresh eyes, and to work with us to seize this opportunity and to put our relations on to a better footing. We stand ready to work with it in delivering the brighter future that is within reach.
Baroness Chapman of Darlington (Lab)
My Lords, I thank the Minister for advance sight of his Statement. However, I was surprised to hear so much of its content on the radio this morning. We are both new to this House, but I have quickly learned the great value of treating this Chamber with respect. Briefing of Statements to the media before the House is discourteous. I hope that he can reassure us that whatever did or did not happen today, this will not become his habit.
When the Northern Ireland protocol was presented as a triumph, I doubt whether the Minister imagined that he would remain responsible for its implementation, yet here he finds himself. Can he tell us whether the problems that he highlights today were anticipated when the agreement was signed? If not, they should have been. If they were anticipated by the Minister before the Government signed up to the agreement, as I suspect, then I am afraid that this will damage our international reputation. In his Statement, he says that he has tried to operate the protocol in good faith, but the technological solutions earlier promised, that would have eased the situation, have not yet materialised, and that does not look like good faith. The problems that he describes are so wide-ranging that if he did not foresee any of them, that raises serious questions about the Government’s approach to the negotiations at the time, and their attitude to the serious undertakings to which they committed the country and from which they now seek to break away.
The protocol was described by the Prime Minister as an ingenious solution. We all remember his promise to Northern Ireland businesses and we all remember him saying that there would be no checks whatsoever. He said that if someone asks you to fill in a form, to “tell them to ring up the Prime Minister, and I’ll direct them to throw that form in the bin.” This is not the first time that the Minister has appeared before this House to discredit his own deal. I regret that this approach has potentially dire consequences for communities in Northern Ireland and, critically, for our international reputation at a time when we are seeking to forge new agreements. The erosion of trust in our Government, an essential component of stability in Northern Ireland, is deeply regrettable and must not be taken lightly.
The Minister’s Statement is, I am afraid, an admission of failure. The Government promised to “get Brexit done”, yet here he is trying to unpick it. The Government must find agreement to fix the problems that the Prime Minister created. We have yet more political brinkmanship and more threats to tear up the protocol, with nothing to take its place. The people of Northern Ireland should not be pawns in a chess match. Communities are tired of these games and the political stalemate. The last thing that they need is a summer of crippling uncertainty which is bad for them and damaging to businesses across the United Kingdom.
The Secretary of State knows that the best way forward is to get a veterinary agreement because it is the most straightforward way to remove the vast majority of checks—I am sure that that is what he is saying to the other place right now—but is it not time that the Government simply delivered on what they promised?
The ongoing stand-off is having consequences for Northern Ireland and our relationships with our closest friends and partners. The eyes of Governments around the world are on the Minister this afternoon. President Biden and Prime Minister Ardern of New Zealand are among those who need reassurance that the UK will abide by international law and be a partner that they can trust. Is there anything less British than forging an agreement but never having any intention of making it work? What does the Minister think that our friends, allies and future trade partners will make of this?
I am sure that the Minister would never advise the Prime Minister to put his own political interests over and above the interests of Northern Ireland. The Minister objects to the EU’s previous threat to use Article 16 powers—I agree with him and am pleased that he has made it clear that he does not consider now to be the right time for the UK to make use of them—but can he make clear to the House whether, when and in what circumstances he would resort to such a drastic measure as the use of Article 16?
The US State Department has been up front and told us that it is watching this situation closely, and it encourages us to find a solution within the terms of the existing agreement that we so recently and eagerly entered into. What conversations has the Minister had with representatives of the Biden Administration on his new position? What is the assessment of the impact of today’s Statement on the favourability likely to be shown to the UK as we seek to make binding deals in the future?
For us to maintain our position as a respected, trusted partner in defence and trade, we must show that we keep our word. We do not make deals knowing that we will break them. I ask the Minister to keep in his mind the people of Northern Ireland. He owes it to them to quickly reach an agreement with the EU and to find a sustainable, long-lasting way forward.
Baroness Ludford (LD) [V]
My Lords, this Government drove through the arrangement whereby Northern Ireland would have a different customs and regulatory status from that of Great Britain. The Prime Minister then claimed that this would not lead to controls on trade between Great Britain and Northern Ireland. That claim was not true. The Prime Minister and his colleagues, including the Minister, knew that the EU needed to protect its single market from unauthorised goods entering it through the back door, that this meant checks in the Irish Sea and that this was what they had agreed to. “Economy with the actualité” does not quite do justice to the deception that was perpetrated.
What the Prime Minister and his Government signed up to and their misinformation about it are the real source of the problems and tensions in Northern Ireland—not the EU, which has, true to form, been made a scapegoat. So, when the Minister repeatedly says in this House and elsewhere that the protocol is having a bad effect, we are entitled to ask: why did he promote it, then? The Government’s refusal to accept the consequences of their own actions and choices around the nature of Brexit is deeply unimpressive.
The Statement claims that the Government have
“tried to operate the protocol in good faith”—
but, sadly, that is not the case. The Government admit that they did not know
“what the real-world impacts on the ground would be”
of the protocol and that the problem is the way that it is currently operating. However, they either knew, as everyone else did, that this was indeed how it would operate, with Great Britain and Northern Ireland under different regulatory and customs regimes—in which case they are now being dishonest and disingenuous—or they did not, in which case they are incompetent. The answer is of course both. Mr Johnson, the noble Lord, Lord Frost, and their colleagues wanted a hard Brexit for Great Britain at any cost. The great god of sovereignty was their overlord, and no practical argument could be allowed to impede the achievement of that goal. In fact, the Tory Brexiters gave barely a thought to Northern Ireland, despite claiming to be fervent unionists.
The closer the level of alignment, the lower the lever of checks—hence, from these Benches, we have consistently urged that the best way to eliminate checks on food, agricultural products and animals was to reach a veterinary or SPS agreement with the EU. However, the Government have stubbornly put ideology before the needs of industry and consumers in refusing to take that level playing field step or any others. Instead, they simply throw their hands in the air and cry that the protocol is untenable and that it is up to the EU to show pragmatism and forgo most or all checks on goods going from Great Britain to Northern Ireland. You could not make this up. It is rich coming from a Government who have been thoroughly dogmatic, and it is a breath-taking passing of the buck. It would be gratifying if the Minister, just once, here and now, accepted that he and his colleagues must take full responsibility for where we and Northern Ireland are now.
So, while the Minister believes that the protocol
“must work in a different way if we are to find a stable route going forward”,
he now presents us with a set of proposals that have anything but stable and certain prospects, since they are an attempt to rewrite the protocol with an enhanced threat to trigger Article 16. The choice of confrontation and instability over real solutions, and pushing Article 16 as a potential remedy, are offering a populist, ineffective and false solution. No major business organisation in Northern Ireland or beyond is calling for Article 16 to be invoked, and, if it were, the EU would have the right to take its own rebalancing measures. It is thus not the silver bullet that its advocates think it is.
One of the new suggestions has been labelled an “honesty box” approach, whereby companies that said that their goods were destined only for sale and use in Northern Ireland should be exempted from checks on the Irish Sea border. The deep irony of this from a Government who have proved very far short of honesty and trustworthiness over the protocol does not escape us.
Unilateral action will see a reaction from the Biden Administration and will have consequences for UK-US relations. In view of the fact that the State Department has urged the UK to stay within “existing mechanisms”, since the protocol and the TCA
“protect the gains of the Belfast/Good Friday Agreement”,
how will the Government prevent harm to the transatlantic relationship that they claim to value so much? It is wholly counterproductive for the Government to engage in more brinkmanship and unilateral action, rather than working in partnership with the EU to address problems.
The real situation is that scope continues to exist to find mutually agreed flexibilities and mitigations, within the context of the protocol, consistent with the legal regimes of both the UK and the EU. In that context, can the Minister tell me what his reaction is to the proposal from the British former senior European Commission official, Sir Jonathan Faull, in yesterday’s Financial Times? The proposal is a development of proposals that he made two years ago and amounts to “mutual enforcement” or “dual autonomy”, protecting the integrity of both the UK’s and the EU’s internal markets and based on well-tested international trade practice. The UK would introduce, as a matter of domestic law, EU rules only for goods that are exported to the EU and vice versa, and national courts could be empowered to make references to the supreme court of the other party in case of doubt about interpretation.
As Sir Jonathan says, this idea “preserves” UK regulatory autonomy, with “compliance … a legal requirement” here and not an obligation imposed by a foreign power. It avoids the complexities of the TCA’s level playing field arrangements—so will the Government pick it up and run with it? After all, the EU hates it, so this Government must find it very attractive. Such a scheme would need mature and rational consideration in a climate of trust with the EU. What the Government are now doing is, sadly, the very opposite of that.
Lord Frost (Con)
My Lords, I thank the noble Baronesses, Lady Chapman and Lady Ludford, for their comments. There is a lot there, and I will try to deal with them. I will begin by picking up the point that the noble Baroness, Lady Chapman, made at the start about respect for this House in terms of briefing. I reassure her and noble Lords that we have not engaged in any such briefing. It is necessary for Statements of this kind to engage in a certain limited amount of diplomatic contact beforehand.
Lord Frost (Con)
No doubt, that is the source of some of what is read in the press this morning, but I would not like anyone to think that we were not showing appropriate respect to this House in the way that we have gone about this matter.
Turning to the substance: a lot was said about us not standing by our commitments as a Government, about unilateral actions and so on—which I find slightly surprising, because that is not what we have proposed. We have proposed a way forward based on consensus and negotiation. That is the responsible thing in these circumstances. We have always said that all options remain on the table, but we have chosen the way of negotiation and compromise, and we hope that the EU will respond in that way. We believe that the possibilities, if it does, are really quite exciting, so that is the way we would like to proceed.
The issue was raised of why we did not foresee this situation. The current protocol reflects the extraordinary circumstances in which it was agreed, when this Government risked being unable to deliver on a democratically determined referendum result because their negotiating hands were tied by actions in this Parliament. We proposed, and eventually agreed, a protocol that was substantially different from our initial proposals, particularly in customs arrangements and in limiting the consent principle. We thought these changes might well cause problems, but we thought that, with a pragmatic, light-touch application of the rules, the right thing to do was to try to make the protocol work.
We could not predict the future; we could not have foreseen the political turbulence the EU would spark off with its Article 16 proposal in January; we did not anticipate the very purist application that would be applied to some of its provisions. We have all learned from experience. We now know what is working and what is not, and we believe that the best way to resolve the situation is to try to negotiate changes—and we do not see what is wrong with that. Anyone would think that it was a highly unusual thing to renegotiate a treaty; of course, it is not. To take one example: the UK-France treaty on juxtaposed controls was itself a supplementary protocol to an agreement reached in 1986, signed in 1991, renegotiated in 2000 and renegotiated in 2007, as the nature of the juxtaposed controls and the situation they were working in changed. So, there is nothing particularly unusual in this, and we do not apologise for it.
The issue of checks between Northern Ireland and Great Britain was raised, and the noble Baroness raised the issue of the Prime Minister’s comments about “throwing forms in the bin”. I would note that he made those comments in the context of movements from Northern Ireland to Great Britain, and there are no forms for such movements. That was something we secured with the EU in 2020, and that unfettered access is extremely important for these arrangements.
The issue of trust was raised, which is clearly extremely important. Trust takes two, and the EU’s actions on vaccines, on Article 16 and on the immediate resort to legal action to try to stop people in Northern Ireland going on holiday to Great Britain with their pets are all actions that are not conducive to trust. We do not want a relationship with high levels of mistrust. The current problems in the relationship are caused by the extreme difficulties in operating the protocol reasonably. If we can get to a better protocol, we will have resolved some of those problems. That is why we are trying to proceed by consensus and get to a better situation.
The issue of people in Northern Ireland was raised. Of course, the protocol itself requires there to be no impact, or minimised impact, on the everyday lives of people in Northern Ireland. The fact that that is not being observed is one of the major problems with the current situation, and that is why we wish to see if we can resolve it in a negotiated way.
The veterinary agreement was raised, and we have made it clear that our position is that an agreement by equivalence could solve problems. But in this Command Paper we are proposing something more fundamental: dealing with the fundamentals of the difficulties rather than the problems. Our proposal for a dual regulatory zone with appropriate processes backing it up—and one of those things could be a veterinary agreement—will resolve these issues in a more fundamental way.
The issue of Article 16 was raised. We set out the thinking on that in the Command Paper, and it is a very legitimate tool for use within the protocol. That is why it is there. We made it clear that the situation would justify the use of Article 16, if we wished to, to deal with both current issues—for example, chilled meats, parcels and so on—and the broader arrangements under which goods enter Northern Ireland from Great Britain. But we have chosen not to go down that route. We prefer to proceed by negotiation, and I hope we can.
I will make a few final points. I have seen the comments from the US State Department spokesman overnight in which he urges everyone to solve differences by negotiation and protect the Belfast/Good Friday agreement. We absolutely 100% agree with that, and that is what we have set out today.
The issue of stability in Northern Ireland is very important: business needs stability. The problem is that we do not have stability now, and anyone who heard the comments from the chair of Marks & Spencer this morning and has seen his letter will be very clear about the kind of extreme difficulties that businesses will face if we simply proceed without trying to rectify the situation. We do not have stability now. We need to produce a solution that will generate stability and get us forward into the future.
So we look to make proposals. We have made proposals that set out a negotiated approach. They are significant and substantive; they offer a good chance, in our view, of resolving difficulties on a durable basis; and we very much hope that the EU will look at them, consider them carefully and go forward with us on that journey.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
We now come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief so that I can call the maximum number of speakers.
Lord Jay of Ewelme (CB) [V]
My Lords, I am grateful to the Minister for giving evidence on the protocol last week to the committee that I chair. We greatly look forward to future such meetings. We will, of course, study the proposals and the White Paper carefully. Meanwhile, I have one question for the Minister. He spoke about trust. Could he confirm that the Government will do all they can to build—or, perhaps I should say, to rebuild—the trust between the British Government, the European Union and the Irish Government that is essential if we are collectively to find a resolution to the protocol that is in the interests of all communities in Northern Ireland and that they profoundly deserve?
Lord Frost (Con)
My Lords, I very much agree with those comments. I could spend time, but will not, looking at the origins of this situation of mistrust and why it has been established. I do not think it is helpful to do so today; we are looking forwards and have to deal with the situation as it is. Our very clear proposal to proceed by negotiation, agreement and discussion will, we hope, begin to help re-establish some of the trust that it seems is lacking on both sides.
Lord Caine (Con)
My Lords, rigid and theological implementation of the protocol has severely disrupted trade, adversely impacted consumers, hit businesses in both Great Britain and Northern Ireland and contributed to political instability. In welcoming my noble friend’s Statement, therefore, I ask: does he agree that it is now the time for the EU fully to respect Northern Ireland’s position within the UK internal market, along with the constitutional and economic integrity of our United Kingdom? Failing that, I assure my noble friend that he will be entirely justified in taking whatever unilateral action is necessary to remedy the current unsustainable situation. In so doing, he will have the strong support of many of us.
Lord Frost (Con)
I thank my noble friend for his comments. He is obviously correct in saying the place of Northern Ireland in the United Kingdom, in the single market, in the customs territory, is protected on the face of the protocol and is absolutely fundamental. It is the doubts that have been allowed to develop on that subject that are part of the reason we face the situation we face today.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, in light of the absence of trust caused by the original internal market Bill last September and the unilateral extensions of grace periods in March, how confident is the Minister that the EU will have the appetite to consider such a fundamental departure from the protocol in terms of Article 5? After all, the UK Government negotiated, agreed and ratified the protocol.
Lord Frost (Con)
My Lords, obviously we will have to see how the EU reacts to these proposals. I hope it will consider them seriously as a significant proposal to find a durable settlement. It is true that they are significant changes to the protocol text and will require that, but we hope that the EU will see that the prize of a durable settlement that allows us to move on is worth the process issue of reopening the protocol text. We must keep our eyes on the prize and what we are trying to do here.
Baroness Goudie (Lab) [V]
My Lords, trust is clearly broken and must be repaired. The protocol would not have been necessary but it is now, and it is an imperfect solution to a problem unnecessarily caused and created. It does, however, avoid the crippling blow to the peace process that a hard border would have represented and would represent, and it contains special measures to protect human rights and equality until someone suggests a better solution. Also, it is vital as part of the Good Friday agreement that investment will be coming to Northern Ireland and I hope that this Government will continue to encourage this, with the other partners of the Good Friday agreement. Can the Minister give me an undertaking that this is still happening? What plans does he have to take it further, working with colleagues in Europe and the United States?
Lord Frost (Con)
My Lords, we are obviously ready to work with anybody and plans are in train to encourage investment into Northern Ireland; I believe there are some events in prospect in the next few months. The noble Baroness is right to call the protocol an imperfect solution: I think it is very clear that it is imperfect. I would say, as she does, that much of the protocol is not in question. Issues such as the common travel area, human rights, the Good Friday agreement and so on are not controversial. What we must do is make sure that the trade and governance arrangements of the protocol work better, and the proposals we have put on the table work with the concepts in the protocol to try to achieve just that.
Lord Empey (UUP)
My Lords, today is not the day to enter into a discussion of how we got into this mess, but one fact is clear: the businesses and the people of Northern Ireland are the innocent victims of a situation which they did not create and did not want. With that in mind, I ask my noble friend: are we seriously, as a Government, going to look at real alternatives capable of resolving these issues within the concept of the Belfast agreement, which I believe has been completely demolished by the current protocol? We want new arrangements that are workable, coherent and long-lasting and will bring the stability that businesses and consumers in Northern Ireland urgently need.
Lord Frost (Con)
My Lords, I very much agree with the thrust of my noble friend’s comments. The proposals that we have put on the table are significant and pretty fundamental in the way that they would adjust the way the trading arrangements of the protocol work. They are intended to be durable and to do something significantly different from what is done now. As I say, we work, in these proposals, with concepts of the protocol; we have not swept it away. We do not agree that the right thing is simply to scrap the protocol and that nothing need fill its place. We believe that the right thing is to work with the grain and use the concepts, but use them to make sure that the arrangements work in a significantly different fashion.
Lord Purvis of Tweed (LD)
My Lords, decisions made by the Boris Johnson Government, not the EU, over the last year have meant that, for the first time in our history, a Government of the UK are compelling UK businesses that trade within the UK to Northern Ireland to register with the Government as an exporter. Any goods from GB to Northern Ireland will have to be separately conformity-assessed and separately labelled and, this month, new parcel and shipping taxes for consumers, set by a foreign power, are now being paid by people, over which we have no representation whatever. There is no mention at all of these in the Command Paper. Does that mean that businesses will have to live with this unacceptable and outrageous burden on UK businesses trading within the UK?
Lord Frost (Con)
My Lords, we have set out in the Command Paper the very high-level elements of the approach we wish to pursue. Of course, we want to discuss the detail with the European Union, including in many areas. What we are proposing is an extremely light-touch measure to allow trade to flow freely within the UK customs union and single market. We think that is a reasonable response to the situation that currently prevails.
Baroness Noakes (Con)
My Lords, I very much welcome my noble friend’s Statement and I hope the whole House will join me in praising his huge efforts to try to make our relationship with the EU work effectively. Does he agree that the guiding star should be what works for the citizens of Northern Ireland, and that if the EU could shift to a people-centric rather than a rules-centric approach, we could start to make some real progress?
Lord Frost (Con)
I very much agree with the thrust of my noble friend’s comments. The impact of the protocol on everyday lives in Northern Ireland is a significant part of the difficulty. Again, if one looks at the comments from the chair of Marks & Spencer, we see the risks to everyday life; for example, the risk of not being able to deliver supplies for Christmas under the current arrangements. I do not think that is what either the European Union or we actually want in this situation, and if we can focus on the practicalities and the reality of the situation and try to find a way through, we will all be the better for it.
Lord Dodds of Duncairn (DUP)
My Lords, clearly the Northern Ireland protocol is not fit for purpose; it is not working or delivering for Northern Ireland. Any noble Lord who visits Northern Ireland and talks to people will know that immediately, and the Minister has done that frequently. Whatever the benefits, they are massively outweighed by the disadvantages—economic, societal and political. Can the Minister assure me that at the end of this process of renegotiation, or if direct action may be necessary by the Government, we will end up in a position where the new balance of arrangements will restore Northern Ireland to its proper place, with no Irish Sea border and with elected representatives of the people of Northern Ireland, either here or in the Assembly, having the final say over the laws that govern Northern Ireland?
Lord Frost (Con)
My Lords, it is clear that the balance we have in the protocol is not working at the moment, and I have explained why on many occasions. The issue raised by the noble Lord is one reason why we think changes to the governance arrangements in this protocol are so important. It simply does not fit with the reality of the situation to have laws imposed and policed by institutions outside the UK territory and subject to the judgments of courts that are not courts of the UK. If we can agree that—I recognise that it is a significant point—I think we will find some of the problems raised by the noble Lord beginning to melt away.
The Earl of Kinnoull (CB)
My Lords, there are 32 committees set up under the TCA and the withdrawal agreement, only three of which are directly relevant to the Ireland/Northern Ireland protocol, leaving 29 that are not—presumably now 30, given the overnight news on Gibraltar. Does the Minister share the concerns of many that the trust problems that are taking place within the Ireland/Northern Ireland protocol might leak across to these other 30 forums, which would be most unfortunate? If he shares those concerns, what are the Government doing to address that?
Lord Frost (Con)
My Lords, where there are trust problems between us and the European Union, they stem ultimately from the issues that we have on the protocol. I agree 100% with the noble Lord that we must try to nip that in the bud and stop it getting in the way, in a durable way, of the rest of the relationship. The issue of Gibraltar that he raises obviously is a dispute about a different issue. There are analogous elements, but it is important to keep these things separate. The mandate that the EU agreed yesterday does seem to be problematic in a number of ways, as my right honourable friend the Foreign Secretary made clear yesterday. But I do not think it makes sense to connect one thing with another. We deal with each of these issues on its own terms and try to proceed in a constructive way.
Lord Thomas of Gresford (LD) [V]
My Lords, seven months ago the Minister negotiated and signed the protocol and presented it to the British people as a triumph. Today he stands at the Dispatch Box and says, “It’s rubbish, doesn’t work, we’ve got to have something better”. Would not the first step—and the best way of resolving the trust problems to which he referred—be for him to resign for a gross failure of government policy for which he is personally responsible?
Lord Frost (Con)
My Lords, the protocol of course was agreed nearly two years ago now, and a lot of water has flowed under the bridge since then. We are saying, and we continue to say, that it needs improvement. We have experience that elements of the protocol are not working well, and there is nothing wrong with trying to improve elements of a treaty; it happens all the time.
Baroness Hoey (Non-Afl) [V]
I thank the noble Lord for his time spent in Northern Ireland listening to people, and for the recognition that the protocol is not working and cannot work. I welcome the proposed changes; particularly important is removing Northern Ireland from being subject to EU rules and the EU court without any say. Could the Minister give us some idea of timescale in terms of just how long these negotiations might go on before it is felt to be time to do something more drastic? Does he agree with me that, if the European Union is really concerned about peace and stability in Northern Ireland, it will respond positively to these proposals—and respond very speedily?
Lord Frost (Con)
My Lords, there are plenty of deadlines in this process already; I do not want to add to them by generating others. We have proposed a standstill—and I will write shortly to the Commission proposing this. Obviously, if a standstill can be agreed, it will take away some of the significance of the expiry of the current grace period. I very much hope we will be able to do that. Obviously, if we cannot, the 30 September deadline is not very far away. We do not want to be faced with the same situation that we have been faced with before on chilled meats and have to focus on solving the cliff-edge problem, rather than dealing with the fundamental underlying problems.
Lord Lilley (Con)
My Lords, I welcome my noble friend’s practical and forward-looking proposals and deplore the backward-looking point-scoring of both Opposition Front Benches. Can my noble friend confirm that, although the EU and its apologists in this House claim that the protocol requires rigid application of all EU rules and checks on goods entering Northern Ireland from Great Britain, in fact, Article 6 says that the Joint Committee shall adopt “appropriate recommendations” to avoid controls at the ports and airports in Northern Ireland “to the extent possible”? So, if the EU refuses to respond positively to his proposals, it will be in breach of both the letter and spirit of the protocol.
Lord Frost (Con)
My noble friend as always makes a very good point. The issue of the requirements in Article 5 and the requirement in Article 6 to avoid checks and controls is of course one of the areas where you cannot just read the protocol straight; you have to look at the purpose and the way its different provisions interact. It is certainly arguable that the Article 6 commitments are not being delivered on, but we have not so far sought to argue that, because the protocol is a political and purposive document and we believe that the right way to solve the problems arising is in a political way, rather than immediately reaching for legal arguments and processes.
Lord Kerr of Kinlochard (CB) [V]
My Lords, this is serious business. Our Queen’s name is on this treaty that we now want to change. The Minister correctly points to precedents for changes to treaties, but I cannot recall any precedent for our condoning—still less proposing—unilateral action if we do not get a negotiated change and the other side does not agree.
I have three particular questions, to which I request precise answers from the Minister, now or in writing. First, on good faith, how does he square with the treaty’s Article 5 our continuing refusal to allow the EU access to the customs database, as we said we would? Secondly, on goods at risk, how does he square his honesty box proposal with what the protocol’s Article 5.2 says about the onus of proof? Thirdly and finally, on Article 16 on safeguards, which the Minister mentioned, which UK exporters would the Government expect to be hit by EU rebalancing measures under the protocol’s Article 16.2?
Lord Frost (Con)
My Lords, I will address those three points very briefly. We do allow access to the databases. We have recently agreed enhanced access and we have a discussion in train to allow further access. We have no difficulty with access to data; indeed, our own solution requires quite wide access to data to provide reassurances. It is certainly true on the second point that what we are proposing is not consistent with Article 5 as it stands; that is why we need to change it. The system we are proposing is a trust and verify system, which is perfectly normal in business and in these arrangements, and which we think will work very well in this context too. On Article 16, I have set out where we are on this issue. We hope that it will not be necessary to use Article 16. We are trying to proceed by agreement—so hopefully the contingency evoked by the noble Lord will not arise.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
My Lords, the time allowed for Back-Bench questions on this Statement have now elapsed. I will allow a minute for a changeover and we will then proceed with further business.