Ireland/Northern Ireland Protocol: Scrutiny of EU Legislative Proposals (European Affairs Committee Sub-Committee Report)
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The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, first, I join others in both acknowledging and thanking the noble Lord, Lord Jay, and all the noble Lords on the protocol sub-committee for putting together this excellent report. I take on board the points made by my noble friend about the tabling of this debate. My noble friend the Chief Whip, who is also present on the Front Bench, has the challenge, as always, to ensure effective debates and scrutiny and I think today’s debate has underlined exactly that.
Again, I commend the noble Lord, Lord Jay, and the suggestion that he should be a part of the negotiating team was an interesting one, maybe a practical one. I commend him because when you have the likes of my noble friends Lord Hannan and Lord Cormack, as well as the noble Baroness, Lady Ludford, and the noble Lord, Lord Dodds, all paying tribute to the noble Lord, Lord Jay, for the balance and perspective he brought in pulling together recommendations, it is no mean feat. I am sure we all commend him for that. Equally, I recognise the measured substance and tone of the noble Lord, Lord Ponsonby, in this debate. This debate can strike emotions, and rightly so. I also acknowledge—while the challenges are there for the Government of the day—the positive and constructive engagement with the noble Lord, and his contribution today underlines that; perhaps unlike other contributions, but there were some that were measured in staying on the actual debate in front of us. I also commend the noble Lord, Lord Liddle: when you are running away with your emotions, to stop yourself mid-flow is always a challenge, and I think we all noticed his restraint—hats off to him for that.
The committee’s report and today’s debate get to the very heart of the challenge and the problem with the current application of the Northern Ireland protocol. The noble Baroness, Lady Hoey, reminded us of this, as did other noble Lords. They recognise it has been a hindrance to trade between Northern Ireland and the rest of the United Kingdom. The noble Lord, Lord Bew, again underlined the key principle that there are two single markets to be considering here: the European single market and, what has been forgotten, the UK single market, which is at the heart of our union and our United Kingdom.
The committee and the debate recognise the democratic deficit—which many noble Lords referred to—in that certain EU laws apply to Northern Ireland on a dynamic basis, without consent from parliamentarians in Westminster or Stormont. They also recognise that the Northern Ireland protocol has become a roadblock to the formation of the Northern Ireland Assembly and, indeed, the Executive. I will come on to some of the more substantial points made by the noble Baroness, Lady Ritchie, about the importance of updates on negotiations. I will also pass on her request about engagement to my right honourable friend the Foreign Secretary. Having known the Foreign Secretary for many years, I am sure that noble Lords will acknowledge that his approach to trying to resolve current issues in Northern Ireland, including the negotiations with the European Union, is reflective of his desire to achieve a practical and pragmatic outcome for all.
Since the committee published its report, the Government and the relevant committees in both Houses have reached an agreement on the Government’s ongoing EU scrutiny commitments. I join the voices, including that of the noble Lord, Lord Jay, in saying that the work that has gone on in achieving this consensus has led to a really positive outcome for all involved. I pay tribute to everyone. I also highlight the importance of this report in influencing the provisions of that agreement. Some of the report’s recommendations are directly reflected in the agreement, such as the automatic deposit of any new EU legislation which the EU has informed the UK of as being within the scope of the protocol. The agreement we reached with the scrutiny committees also encompasses that continued submission of Explanatory Memoranda on EU proposals which amend or replace existing proposals that fall under the scope of the protocol, including the EU legislation in Annex 1.
Finally, the report also made the important point that the material provided by the Government in Explanatory Memoranda should be of the highest quality, so that it can be supportive of effective scrutiny. I take that on board. As the noble Lord, Lord Jay, will know, officials from the departments are working very closely with the committee clerks on exactly this point. It is very much a live discussion, and we hope that that will reflect the views of the committee in the detail and the nature of what is required within Explanatory Memoranda. As the noble Lord, Lord Jay, will already be aware, the Cabinet Office Minister of State wrote to the Secretaries of State in 2021 to stress the importance of submitting well-crafted Explanatory Memoranda. But I take on board the points made in the report.
Turning to some of the questions raised in our debate, as I said, government officials are working with committee clerks to review and enhance the format of Explanatory Memoranda so that they better reflect the information that committees find helpful. As part of the agreement with the committees, there will be an interim review of arrangements in the summer and then a full review after two years or at the end of this Parliament, whichever is sooner. The Government look forward to working with the committees to see how these arrangements could be improved still further.
There were some practical suggestions made in the debate on the issue of divergence; I cannot answer the full detail of those today. The noble Lord, Lord Jay, raised an important point on this issue. The FCDO is working very closely with other government departments to analyse the EU law that applies in Northern Ireland. This involves identifying issues relating to regulatory divergence and, where necessary, raising them with the EU directly. While some of these discussions require discretion, the Government regularly update the relevant committees in both Houses through the publication of Explanatory Memoranda. I know that the noble Lord has also recently sent correspondence to my right honourable friend the Foreign Secretary on this matter. I asked for an update on that, and I understand that a response is due to be sent in the very near future. I will follow up again on that point. These issues were also raised by my noble friend Lady Altmann and the noble Baroness, Lady Suttie, in their contributions.
The noble Baroness, Lady Ritchie, also raised the important point of divergence and its impact. I reassure her that this is a cross-government endeavour; the FCDO is not alone. I have already alluded to my colleagues in the Northern Ireland Office, and I am delighted that my noble friend Lord Caine has joined us on the Front Bench for this important debate. He and I are working very closely on this. I will get on to negotiations in a moment, but I say first and foremost that we do all sit in one room—we convene these meetings together regularly, as was underlined by the visit my right honourable friends the Northern Ireland Secretary and the Foreign Secretary made to Northern Ireland. We are also working with other departments, including BEIS and the Cabinet Office, and linking in with the work on common frameworks and the UK Internal Market Act. My own officials work very closely with their partners across government, including on quality, ensuring that the issues on Explanatory Memoranda that have already been raised are directly addressed.
Turning to the negative impacts of the protocol, the noble Lord, Lord Murphy, described the situation as unique, and I agree with him. The issues with the way the protocol has been implemented are causing this debate and the problems in Northern Ireland, as we heard from many noble Lords, including my noble friends Lord Dodds and Lord Weir. Traders have to bear additional costs and bureaucracy. The noble Lord, Lord Bilimoria, highlighted the challenges that companies are facing; they want clarity. I know that my noble friend Lord Caine has been engaging directly with many companies and businesses over a number of months. I am sure we will return to some of these discussions and debates, but I assure noble Lords that their views matter, and that is why we are engaging and ensuring that they are factored into the discussions and negotiations we are having with the European Union. As I say, traders have to bear additional costs and bureaucracy and are missing out on some of the advantages being enjoyed in the rest of the United Kingdom. This is unacceptable.
The political cost is also unsustainably high. The Belfast/Good Friday agreement is based on respect between all communities and the consent of all communities, and we must keep that at the heart of our approach. The protocol itself is directly undermining that principle and preventing the restoration of the Northern Ireland Executive. Again, the noble Baroness, Lady Hoey, raised this point. That is why it is a top government priority to continue to work with our European partners to address these problems and put the protocol on a sustainable footing. This requires commitment, negotiation and movement from both sides, as my noble friend Lord Hannan noted.
Turning to the Government’s approach, my noble friend Lord Lamont, the noble Baroness, Lady Ritchie, and others raised the important issue of the democratic deficit. We have long held, since our Command Paper back in 2021, that this will need to be addressed if the protocol is to operate sustainably. This is one of the issues we are seeking to address directly in discussions with our EU counterparts. The noble Lord, Lord Hannay, made some very practical suggestions. It would be very easy for me to nod and agree with all of them, but he knows from his experience as a senior diplomat that I will have to take these back. Other noble Lords also raised some practical suggestions on this issue that I will certainly take back and share with colleagues, and indeed my right honourable friend the Foreign Secretary. On his specific questions, I am not aware of any discussion about the EU office in Belfast, but I think there is merit in the process to ensure that the impact of EU legislation is fully understood. My noble friend Lord Caine has also heard that point very clearly.
Many noble Lords focused on negotiations, and rightly so. I recall hearing very clearly when the Northern Ireland Protocol Bill was in Committee about the importance of discussions with our partners, and I emphasise that point now. If I can digress on recent events—the noble Baroness, Lady Ludford, said that we have gone quite wide, but events do matter—events in Europe and the war on Ukraine have clearly demonstrated the importance of partnership working and approaching those who seek to disrupt democracy, cause division and sow discord, and that there is unity in action. It is in that spirit that I know my right honourable friend the Foreign Secretary and European Commission Vice-President Maroš Šefčovič have had regular discussions. They last discussed these issues earlier this week, on Monday 16 January. I have been part of some of those meetings, and we will continue to engage on the practical issues. As I said in that debate, it is not just about atmospherics; there is cause and focus on substance as well. They have spoken regularly over recent months.
As the noble Lord, Lord Bew, reminded us—and I update the noble Lord, Lord Murphy, and my noble friend Lady Altmann—the Government reached an agreement with the EU on the way forward regarding the specific question of the EU’s access to UK IT systems. This issue was raised with us directly as a critical prerequisite to building trust and providing assurance, which provides a new basis for EU-UK discussions. The Foreign Secretary and Vice-President Šefčovič’s conversations on Monday also took stock of recent progress and scoped further work for potential solutions. These engagements and negotiations continue in a constructive and collaborative spirit at all levels—including technical discussions between officials, which take place very regularly.
The noble Baroness, Lady Hoey, raised the issue of discussions on the recent Defra statutory instrument. I emphasise to her, and indeed to all noble Lords, that this is required in any outcome, including the green and red lane model under the Northern Ireland Protocol Bill. I assure noble Lords, as I have already said, that the Secretary of State for Northern Ireland and the Foreign Secretary remain in close contact and work very closely together. I know through direct attendance of various meetings on this very issue that we convene these meetings across government.
I am conscious of time and responding to the important issues that were raised. Turning briefly to the important and practical points made by the noble Lord, Lord Hain—there he is; sorry, he caught me out there, as I was scanning the Benches—he speaks from great insight and experience. The Government have long held that the protocol is leading to a democratic deficit where EU law applies in Northern Ireland but with little meaningful consultation on that EU law. I can say to the noble Lord that the representatives of the Northern Ireland Executive already attend meetings at the joint consultative working group, and we value their important expertise. However, I take on board what he has said. There are always ways to improve existing processes and mechanisms, including through the discussions we are currently taking forward with the EU. I will certainly reflect on the practical suggestions he has put forward again today.
My noble friend Lord Lamont reminded us of the anniversary of the Belfast/Good Friday agreement. Preparations for the anniversary are currently under way. Attendance is being considered across government, including in the British embassy in Washington. Confirmed details on who will attend will be announced in due course and I will keep the House updated.
To conclude, I reiterate once again that, when it comes to practical working with our partners in the EU and the issue of the Northern Ireland Protocol Bill, the Government’s preference remains for a negotiated outcome. I hope that some of the details I have shared this morning underline both that commitment and the progress that is being made in the discussions. However, the Government introduced the Northern Ireland Protocol Bill to fix the practical problems created by the protocol in the event that this is not possible. I totally take on board the points raised by the noble Baroness, Lady O’Loan, and my noble friend Lord Dodds that these things need to work in the interests of all communities across Northern Ireland. Indeed, they need to work for the whole of the United Kingdom.
From a political and practical perspective, the current situation in Northern Ireland is not sustainable, as highlighted by the noble Lord, Lord Bilimoria. The protocol is inflicting increasing economic and political harm and undermining the very principles of consent that underpin the Belfast/Good Friday agreement, as we were reminded by several noble Lords, which must remain paramount in all negotiations and discussions. The Government are committed to fixing these issues so that the Executive can be formed. We are committed to ensuring that all businesses in Northern Ireland can prosper. We are committed to finding solutions through the negotiations with the European Union and ensuring that both single markets and all people across our United Kingdom can truly prosper.