Protocol on Ireland/Northern Ireland (EUC Report)

Lord Jay of Ewelme Excerpts

Monday 13th September 2021 Grand Committee

[Lord Jay of Ewelme (CB)]

My Lords, it is a pleasure to follow my noble friend the Earl of Kinnoull. The appointment of a dedicated sub-committee on the protocol was a welcome and important step, and it is an honour to chair it. Its appointment has enabled the House to take advantage of a formidable range of experience in Northern Ireland affairs in your Lordships’ House, much of which is around us today. I am delighted that many members of the committee will be speaking in this afternoon’s debate.

The sub-committee’s membership includes strong and divergent views, both on the constitutional status of Northern Ireland and on the protocol itself, yet we were united in our determination to agree a report unanimously and by consensus. We did not consider that our task was to argue for or against the protocol itself, but rather to scrutinise its operation in an objective and evidence-based manner. That is what we have tried to do, and we hope that that gives added force to our conclusions.

The report takes account of evidence given to the sub-committee by the Minister. We were very grateful to hear from him, and we trust that he will be willing to appear before us again in the future. The report also takes account of oral and written evidence from business, community and civil society representatives, political parties in Northern Ireland, academic and political experts, and the Irish and EU ambassadors in the UK.

The report is billed as an introductory report by the protocol committee, which first met on 21 April. It endorses the six key elements of the committee’s remit, as set out in the Liaison Committee report: document-based scrutiny of new or amended EU legislation within the scope of the protocol; scrutiny of the implications of relevant domestic UK legislation and policy for Northern Ireland; scrutiny of the Northern Ireland-related work of the governance bodies established under the UK/EU withdrawal agreement; monitoring the protocol’s political and socioeconomic impact on Northern Ireland; reviewing the impact of Brexit and the protocol on the UK/Irish bilateral relationship; and developing interparliamentary dialogue in relation to the protocol, including with the Northern Ireland Assembly and the Irish Oireachtas.

I emphasise in particular the importance of the committee’s scrutiny of EU legislation as it applies to Northern Ireland. We are no longer able to examine draft legislation round the EU’s council table, so parliamentary scrutiny of the legislation that will affect Northern Ireland really matters. I am grateful to the noble Lord, Lord Frost, for recognising the importance of comprehensive and comprehensible explanatory memoranda.

Chapter 2 gives an account of the negotiation and implementation of the protocol and of developments since it came into force on 1 January. The committee identified five interlocking problems or failures by the Government or the EU that have contributed to the tensions that have arisen: lack of transparency about what was agreed; lack of readiness, notwithstanding the best efforts of business, for the protocol’s provisions to be implemented; lack of balance and understanding of the protocol’s impact, in particular on Northern Ireland’s relationship with the rest of the UK; lack of flexibility in the application of the protocol; and a lack of trust between the two sides.

Chapter 3 sets out the economic impact of the protocol. The initial negative impact of the protocol in the first weeks of its operation had many causes and was more limited in scope than some media reports would have us believe, but businesses were undoubtedly hindered by the lack of clarity in advance about the protocol’s operation. The long-term impact of the protocol on trade flows is not yet clear, but there are early signs of a growth in north/south trade. On the other hand, businesses told us of repetitive and disproportionate new logistical processes for goods moving from Great Britain to Northern Ireland. We heard serious concerns about the impact of the expiry of the grace periods and the absence of mitigating measures, and fears that businesses in Great Britain will withdraw from the Northern Ireland market because of the actual or perceived administrative burden of the protocol. Yet we also identified potential economic benefits under the protocol, given Northern Ireland’s unique access to both the UK and the EU single markets, including as a destination for foreign investment. However, political stability is a prerequisite if such benefits are to be fully recognised.

Chapter 4 sets out the political and social impact of the protocol. We acknowledge the destabilising impact of first Brexit and then the protocol on the political situation in Northern Ireland and on the delicate equilibrium encapsulated in the Belfast/Good Friday agreement as questions of borders and identity have once more come to the fore. We heard about the concerns of the unionist and loyalist communities that Northern Ireland’s place within the United Kingdom has been undermined by the protocol. Yet the unrest and sense of alienation in loyalist communities has several deep-seated causes, and there are also deep concerns over the democratic deficit at the heart of the protocol whereby significant aspects of EU law apply to Northern Ireland without its consent. While that deficit can be mitigated, it cannot be eliminated. This is a difficult issue, to which the committee will return later in the autumn. We also stress the importance of meaningful engagement by both the UK and the EU with the people and communities of Northern Ireland, including women and young people who have felt sidelined in discussions so far.

Chapter 5 of our report considers mitigations and solutions. We called on the UK and the EU, in a renewed spirit of urgency, partnership and trust, to agree practical solutions to ensure the proportionate application of the protocol in order to meet the commitment that it should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland. Business leaders and others proposed over 20 practical mitigations, including a UK-EU SPS veterinary agreement. We also called for measures to maximise Northern Ireland’s influence both within the UK and with the EU, and stressed the key roles to be played by the Northern Ireland Executive and the intergovernmental institutions established under the Belfast/Good Friday agreement.

Some witnesses argued that the disruptive effects seen since the protocol came into force already justify the use of the safeguarding mechanism in Article 16. Others argue that any unilateral action by either side had destabilising political and economic consequences. In any event, Article 16 is not a means to abandon the protocol, and is a measure underpinned by an obligation to continue dialogue to resolve the issues of concern. It would surely, therefore, be preferable for both the EU and the UK to seek to identify mutually acceptable solutions.

Our report also acknowledged the principled opposition of many in the unionist and loyalist communities to the protocol and the alternatives that some of them have put forward; yet, for many nationalists and republicans, the protocol is a necessary and the only means to avoid a hard border on the island of Ireland. We stressed that the UK and the EU had an obligation both to consider alternatives and to work together to seek resolutions within the protocol.

Our report was agreed a matter of hours after the Government’s Command Paper was published on 21 July. It does not therefore take account of the Government’s specific proposals. The committee’s intention is to scrutinise the Command Paper and the EU’s response in the coming weeks as talks between the two sides continue and, we hope, make progress. In that context, I note the Minister’s announcement last week that the current arrangements for the protocol will continue and that the grace periods will be rolled over, and the European Commission’s response that no new infringement procedures will be opened for now. We all hope that this opens the way for constructive discussions between the UK and the EU, but the gap between the two sides remains large. The cliff edge has, if you like, been replaced by a slippery slope.

What updates can the Minister give us today on the discussions that have taken place since the Command Paper was published? How long can those discussions realistically continue? What assurance can he provide that the opportunity that this breathing space has provided will not be wasted and that both sides will explore the room for compromise that will be necessary if agreement is to be reached?

I finish by reiterating the final conclusion of our report:

“addressing the issues of conflicting identity that first Brexit, and then the Protocol, have brought to the fore seems for the moment an insoluble problem. That was also true of the political situation in Northern Ireland during the Troubles. But through a slow and painstaking process led by political leaders in Northern Ireland and successive governments in London and Dublin, the peace process took root and flourished, leading to the Belfast/Good Friday Agreement and the subsequent steps towards a power-sharing arrangement … This process took time, patience, dialogue, and most of all trust. The same is true in addressing the problems that Brexit and the Protocol present for Northern Ireland. There is therefore an urgent imperative for all sides to make concerted efforts to build trust by recommitting themselves to that process of dialogue, repairing the damage caused to relations across these islands during the past five years, in the interests, as the Protocol rightly acknowledges, of communities in both Ireland and Northern Ireland.”

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[Lord Jay of Ewelme (CB)]

I too am grateful for all those who have taken part in the debate this afternoon. I am grateful too, to the noble Lord, Lord Frost, for the answers he has given so far. I look forward to further answers in response to the committee’s report in the days to come. It has been a fascinating debate and it shows that you can discuss even the most difficult issues—and there are some pretty difficult issues here—with calmness, a certain dignity and, from time to time, a historical aperçu, if I may use that expression.

The committee will be looking at some quite tricky issues in the months ahead. Ahead of that, I have taken very careful note of the Gypsy’s warning issued by the noble Lord, Lord Empey.