Protocol on Ireland/Northern Ireland (EUC Report)

Lord Hannay of Chiswick Excerpts

Monday 13th September 2021 Grand Committee

[Lord Hannay of Chiswick (CB)]

My Lords, the report from your Lordships’ European Affairs Committee and its Northern Ireland sub-committee and the introduction to both by our two chairs do not stand alone. They need to be considered alongside the Government’s July White Paper on the same subject. Indeed, the fact that the Government chose to table their proposals for modifying the Northern Ireland protocol just 24 hours ahead of the committee’s report without waiting to consider its views or, indeed, without taking the opportunity to provide in evidence, which the noble Lord gave to the committee not long before, their own thinking was, I fear, a singular and lamentable act of disrespect to Parliament.

Although a member of the European Affairs Committee, I can without immodesty say that the report is a balanced, unvarnished account of the difficulties that have arisen over implementing the protocol, since we did not modify or criticise any of the sub-committee’s findings. I wish I could say the same of the White Paper, but it is an altogether more partisan document, designed as much to dismantle and renegotiate as to implement what was agreed so recently between the UK and the EU.

The hard fact is that the protocol was agreed by the two parties to it and was then endorsed and ratified by the two parliamentary institutions on both sides, thus becoming binding international law. It must seem odd to some looking at this that its principal negotiators on our side, the Prime Minister and the noble Lord, Lord Frost, now find so much in it to challenge despite probably having more experience of the way the EU operates than any of their predecessors in these jobs. Did they really not understand what it meant, or did they understand and conclude the agreement without any intention of implementing it? I shall be interested to hear which of those two the noble Lord, Lord Frost, opts for.

No one disputes that implementation raises a number of sensitive and complex problems which need solutions. They are reviewed in detail in the committee’s report. They cannot and must not be ignored. No one disputes either that solutions need to be found in a spirit of pragmatism and flexibility, but pragmatism and flexibility are two-way streets; they are not something you can ask just one side to show. You have to be prepared to show it yourself as well. I am afraid that pragmatism and flexibility are not encouraged by modifying deadlines and the protocol unilaterally, as the Government did earlier in the year, nor by threatening to invoke the main safeguard clause if we do not get our way, nor by seeking pretty fundamental changes in the governance procedures laid down in the protocol, nor by dismissing out of hand the idea of negotiating sanitary and phytosanitary conditions on a temporary basis, which would remove many implementation problems. Better surely to practise the qualities we are calling for, pragmatism and flexibility, and to eschew megaphone diplomacy.

A clear example of megaphone diplomacy was last week’s speech by the relatively new leader of the Democratic Unionist Party, Sir Jeffrey Donaldson. That sort of bluster and blackmail will serve no useful purpose, provoking, as it has already done, a reiteration of the EU’s refusal to renegotiate the Northern Ireland protocol, so recently concluded. It reflects too a refusal by the DUP to recognise the validity of a protocol which was agreed by the UK Parliament despite the DUP’s objections. That is the very conjunction which resulted in Britain’s exit from the EU despite the majority of Northern Ireland voters having voted to remain. Surely what is sauce for the goose should be sauce for the gander.

There are obviously major issues at stake here, including the overall health of the UK-EU relationship, which can hardly be said to be flourishing. We should not forget that triggering the Article 16 safeguard clause would open up the possibility for the EU to retaliate. Do we seriously accept the assertion that it is the protocol which endangers the Belfast agreement rather than a breakdown over implementing it being the immediate cause, with the main cause, of course, being Brexit? I know that that last statement will be considered a bit provocative, but how else is one to interpret a reversion to pre-Belfast agreement rhetoric by the leader of the DUP, which we heard last week?

Then, what price the prospects for a UK/US trade deal in circumstances where the protocol fails to be implemented or is set aside? The Government quite rightly take the view, and have often said so from the Dispatch Box, that Britain’s interests are best served by upholding the rules-based international order, but this protocol is part of that order. A post-Brexit Britain whose word is no longer its deed will pay a heavy and unnecessary price. It is surely preferable to negotiate calmly and purposefully to implement the protocol that we put our name to. I hope that the noble Lord, Lord Frost, when he replies to this debate, will confirm explicitly that that is the objective that the Government are pursuing.

--- Later in debate ---

[Lord Frost (Con)]

I thank the noble Lord for his intervention. The point that he mentions in paragraph 71, the issue of engagement of the Northern Ireland institutions in this process, is one of the most sensitive of all and I do not think it would have been right for us to set out a specific way forward in the Command Paper.

The difficulty we have is the lack of democratic consent for specific measures as they come through from the EU’s law-making process. At the moment those are imposed without consent. We are proposing a reordering of the governance arrangements of the protocol so that the consent, if it exists in Northern Ireland for such measures, can be more real, meaningful and based on genuine debate. There are a number of ways of achieving that if the EU wants to go down that road and that is a pre-eminently political question for people in Northern Ireland, as well as one for the UK Government. That is why we have set out the issue without proposing a specific way forward, but it is very much an issue for discussion.

We want to proceed by negotiation and that is part of it. I want to be clear about what is possible for us in doing so. First, the Command Paper sets out how the tests for Article 16 are, in our view, met. I urge the European Union to take that judgment seriously. It would be making a significant mistake if it thought we were not ready to use Article 16 safeguards if that were the only apparent way forward to deal with the situation in front of us. As my noble friend Lord Hannan commented, there is ample justification for doing so.

Secondly, if we are to avoid this situation there needs to be real negotiation between us and the European Union. The noble Earl, Lord Kinnoull, correctly referred to the need for an atmosphere of co-operation and trust. Others, such as the noble Baronesses, Lady Suttie and Lady Chapman, and the noble Lord, Lord Empey, echoed that. The question of trust has come up a lot in these discussions. The noble Lord, Lord Jay, asked for assurances that the time we have before us would be used constructively and the noble Baroness, Lady Ritchie, asked for an assessment of progress on that negotiation. We have had several technical discussions. I will give the floor to the noble Lord, Lord Hannay.

[Lord Hannay of Chiswick (CB)]

The noble Lord mentioned Article 16. Can he answer two questions? First, does he agree with the view expressed in the debate—which I do not agree with—that the European Union triggered Article 16 in January? My understanding is that the Commission sought the powers to trigger but never triggered. The more important question is: have the Government done any analysis at all of the sort of compensatory measures the European Union would likely take if we triggered Article 16 in circumstances it considered unjustified?

[Lord Frost (Con)]

I thank the noble Lord for his intervention. The issue of what the European Union did or did not do at the end of January deserves a bit of comment. There are two aspects to this. The first is the question of Article 16: was it triggered or not? In a way, obviously, the intention is as important as the fact. It is our view that it was triggered, however briefly. It was certainly the intention to do so. The second aspect of what the EU did in January—the reason why Article 16 was used—sometimes gets less comment. It intended to use it to put in place a process across the land border on the island of Ireland, something that for the previous five years we had been told was impossible, undesirable and disastrous. That is as much why this struck and changed the debate so much as the very fact of Article 16.

On the second point, if we were to use Article 16, it would obviously be open to the EU to consider countermeasures if it wished. I do not want to get too far down the hypothetical road, but it is obviously a possibility. Of course, there has been a good deal of analysis of that. We would have to see what the situation was in those circumstances, but everyone has an interest in avoiding needless deterioration of trade and needless further economic difficulties for either side, at a time when supply chain and trade costs are so significantly raised already. That will obviously be a matter for the European Union, and we have to take it as such.

To return to my flow, regarding where we are in talks at the moment, we have had a series of technical discussions with the EU and continue to do so. These have been quite helpful, but they are nevertheless talks about talks; they are not yet a process that gets to the fundamentals, and we need to get into that. We must get into something more substantive as a matter of urgency.

A real negotiation does not mean the EU coming up with its own plans for solutions within the framework of the existing protocol and presenting them to us, take it or leave it. To be honest, I have been a bit concerned by a couple of the comments I have heard from Commission representatives in recent days, which seem to suggest they might be considering that way forward. The noble Lord, Lord Kerr, picked up the comment by Maroš Šefčovič the other day, when he said:

“A renegotiation of the protocol … would mean instability, uncertainty and unpredictability in Northern Ireland.”


Unfortunately, we already have all those things in Northern Ireland. The question is: how do we move on from them? I do not take Commissioner Šefčovič’s words as a dismissal of our position. I take them as acknowledgement of it, but also as a fairly clear indication that there is more to be done. I urge the EU to think again on that point and consider working to reach genuine agreement with us so that we can put in place something that will last.

I am conscious of time and will wind up quickly. The negotiations need to begin soon. I will not put a timescale on that, but it needs to be urgent as the situation is urgent.

Finally, I would urge the Commission to be sensitive to the situation in Northern Ireland in its actions. The EU has a treaty with us, and as my noble friend Lord Moylan made very clear, that does not make it a part of the Government of Northern Ireland. We are very happy to receive representatives of the Commission in Northern Ireland at any point, so that they understand the situation there, but I gently suggest that they should be cautious in coming to public judgments about the situation, or suggesting it is for the EU itself to decide how to resolve it. I do not think that will make the situation calmer; it will make it more difficult.

The situation we face is complex and challenging, self-evidently, but there is still a real opportunity for us both to find durable arrangements. That is our intention and our wish, and that is where we will be putting all of our effort in the next few weeks—in arrangements that can win the confidence of communities in Northern Ireland. We are ready to seize this opportunity and we urge, as strongly as we can, the EU to do the same. Bold action is needed to build a new, sustainable consensus. Once again, I thank all noble Lords for their contributions to the debate, and I look forward to continuing it, as I am sure we will, in many different fora in the future.