Ireland/Northern Ireland Protocol: Scrutiny of EU Legislative Proposals (European Affairs Committee Sub-Committee Report)

Lord Lamont of Lerwick Excerpts

Friday 20th January 2023 Lords Chamber

[Lord Lamont of Lerwick (Con)]

My Lords, I speak as a member of the main EU Select Committee. I warmly welcome the sub-committee’s report and I thank my fellow member the noble Lord, Lord Jay, and his colleagues for their hard work and the detailed and constructive recommendations in the report.

The Northern Ireland protocol has produced an unprecedented awkward situation whereby the laws of a foreign jurisdiction are to apply in certain respects to part of the United Kingdom—that is, Northern Ireland. That will include 300 laws, new laws and dynamic alignment whereby existing laws, when they are changed, will cause Northern Ireland to change its laws too. It is therefore extremely important, if we are to have EU law in part of the UK, that there be proper parliamentary scrutiny by the House of Commons, by the Northern Ireland Assembly and of course by this House. We cannot alter EU law but the scrutiny, as the noble Lord has said, enables us to understand the implications and bring what influence we can to bear. It is also important that EU legislators are aware of the specific circumstances of Northern Ireland and take them into account.

The committee has produced a plethora of practical and constructive recommendations to improve scrutiny at all stages, including pre-legislative consultation. I warmly welcome them but, call it what you like—accountability, transparency, glasnost—it can take one only so far. There remains the fundamental problem, as the Government’s reply says, of the democratic deficit. It used that phrase, as did the noble Lord, Lord Jay. This situation cannot be resolved simply by scrutiny.

The Government make an important point in paragraph 30 of their reply to the committee when they say that

“the imposition of EU law … was not a necessary consequence of”

Brexit, any more than Brexit

“required dynamic alignment, or the ‘backstop’. The imposition of EU law was a consequence of the EU’s unwillingness to accept other solutions … We need to see much more ambition from the EU to engage on the changes necessary to give Northern Ireland institutions … a meaningful role in shaping the rules applicable in Northern Ireland.”

That is of course the problem at which the Government’s stalled protocol Bill was partly aimed. These are very important points in the Government’s reply to the committee because they are frank, and they are saying that it is not just the sometimes-alleged intransigence of unionist politicians but also the inflexibility of the EU that has been holding things up.

The reply does not mention the issue of cross-community consent, which would obviously be outside the terms of reference of the committee, but that consent has been an important part of democracy in Northern Ireland ever since the Good Friday agreement. Its absence might well be regarded by unionists as a most important part of the democratic deficit. It would be good to know from the Minister today what more the Government think can be done to fix—if fix is the right word, or if it is possible—the democratic deficit. Is this just some minor constitutional outrage that eventually we have to learn to live with? Do the Government see the dual regulatory regime, as has been hinted, as helping to solve this problem? How would it do that, when for some people that would be opting out of the direct imposition of EU law? Is that practical and would it really be acceptable to the EU?

Mr Varadkar said recently that perhaps the EU’s interpretation of the protocol had been too strict. That sounded as though the EU might be prepared to be more flexible but, almost immediately, his words were qualified by the Commission. We read about the progress that has been made with proposals for red and green channels, potentially minimising checks on goods going from GB to Northern Ireland. This is very welcome and might help to stop the artificial diversion of trade, which weakens the economic link between GB and Northern Ireland and undoubtedly alarms unionists, but it would still leave the political problem.

We are all anxious to see power-sharing back—to have the Assembly and Executive back. It would be good, if possible, to welcome President Biden to the Good Friday anniversary. I recognise that the Government have a difficult job but, as things stand, it is very difficult to see where the landing zone is going to be.