Protocol on Ireland/Northern Ireland (EUC Report)

Baroness Hoey Excerpts

Monday 13th September 2021 Grand Committee

[Baroness Hoey (Non-Afl)]

My Lords, when I used to appear at referendum campaign rallies with the previous speaker, I always made it clear that I would only speak before him. Unfortunately, today, I have to follow him and can say what a great speech that was. I also pay tribute to the speech of the noble Lord, Lord Caine. I am really looking forward to the book, which will be well worth reading. We were all enlightened today to hear a little more about the negotiations going on way back under the former Prime Minister.

Like most committee reports, by the time they have been published and debated, they are a little out of date as events have moved on, but I welcome the reports, as far as they go, and accept that they are preliminary and that this project is ongoing. I suggest the committee tries to meet some of the younger pro-union loyalists next time, who are now beginning to speak out in Northern Ireland. The problem for establishment committees such as this is that they go for the well-known, regular commentators, and they know what they are going to say before they turn up. Those at the grass roots of what is happening in Northern Ireland get ignored, not listened to.

We saw that just last week, when Vice-President Šefčovič—I apologise to him for my pronunciation—spent two days in Northern Ireland. He refused to meet the leader of one of the main unionist parties, the Traditional Unionist Voice party, Jim Allister. He did not meet any of the loyalists I am talking about in their communities. The whole idea of outreach, which the EU has made a great deal of, needs to be looked at.

There are two points I want to put on record at the beginning. First, there is a tendency for those who voted to remain in the referendum to tell us leavers that we own Brexit, that we own the protocol and that it is our fault. I campaigned for Brexit very strongly and I would do it again, but I campaigned for the whole United Kingdom to leave the European Union in totality. I did not see on my ballot paper a little bit put off saying, “Do you want to leave the United Kingdom, but to leave out Northern Ireland?” I strongly believe that we do not have Brexit in Northern Ireland, and that is part of the problem.

Secondly, we hear a lot from many people, including those in government, that Brexit made an Irish Sea border inevitable, but anyone who says that is actually stating that Northern Ireland voters did not have the right to take part in a nationwide referendum on the same basis as those in the rest of the United Kingdom, and that the outcome of that referendum applied in Northern Ireland without any qualifications. Those who say that do not really believe in the union of Great Britain and Northern Ireland. If they are being honest, they should say that they are not unionists. The trade checks are not done in the Irish Sea, anyway. They are on the land of the island of Ireland, at Larne, Belfast, et cetera. All those who said we could never have a land border on the island have exactly that; the only difference is between one part of the United Kingdom and another, not between Northern Ireland and the Republic.

In Northern Ireland, the good, decent, honest people who feel British and believe that they were guaranteed the right to be British unless there was a majority who did not wish to be, are expected to put up with this. Would noble Lords be sitting here debating in the same way if it had been the other way round—if it was a nationalist community saying, “We don’t want a land border between Northern Ireland and the Republic”? The pro-union community is expected to put up with it. We know why we have this. It is because the collusion between the Irish Government and the European Union, and the threats of violence, led our Government to go along with saying that there can never be a trade border on the island of Ireland at the frontier—which is where any normal country would think it should be. The Belfast agreement would be broken, according to nationalists and many here, by a land border between Northern Ireland and the Republic of Ireland, but it is not broken by having a border between one part of the United Kingdom and another. The Belfast/Good Friday agreement was based on balance and the balance has now gone completely the other way.

I am very surprised that the committee did not say more about the court judgment at the end of June, which I know the Lord Speaker has said we can refer to, when Mr Justice Colton confirmed that

“the government has removed critical aspects of the Acts of Union 1800; the legislation that effectively created the United Kingdom.”

As one of the applicants for the judicial review along with Jim Allister, Ben Habib, Arlene Foster, Steve Aiken and the noble Lord, Lord Trimble, I find it very concerning. It has huge political ramifications as well as legal significance. It represents a direct challenge to what the Prime Minister said in response to Sir Jeffrey Donaldson in Prime Minister’s Questions, when he said explicitly that this provision had not been repealed by the withdrawal agreement and the protocol. We are going to appeal. The case raised complex legal issues, but they will eventually be settled, and I am sure many noble Lords here will be delighted that it will be going to the Supreme Court and keeping our lawyers in business. The Acts of Union are a constitutional statute and the courts do not seem to have considered a case like this before where constitutional statutes clash.

As there are many lawyers here and I am sure they read the European Journal of International Law, I want to refer to a recent, excellent article by Professor Joseph Weiler. He has written about the treaty of Versailles, Brexit, the Irish protocol and the Versailles effect. As someone who used to be head of the European University Institute in Florence and a very strongly pro-EU person, he quite explicitly argues very coherently about why the European Union has been so wrong in the way it has handled the whole of the Northern Ireland protocol. I suggest that Members might like to refer to that.

The grace periods have been extended and I thank the noble Lord, Lord Frost, for all that he has done. I know he is battling against very difficult European Union representatives who still seem to want to find ways of punishing us more for leaving. The grace periods have been extended, but that does not change what is currently happening. They were going to bring in much worse things, both in trade issues and in other ways; those have now been put off, but it does not change what is happening. There are still checks in Larne and companies in Great Britain not wanting to send anything to Northern Ireland. Not a week goes past but there is something else and another company says, “We can’t really be bothered with this; it’s not worth the hassle, we really don’t want to do it.” Tinkering with the protocol is not good enough. Even if we manage to get trade flowing freely, as long as we in Northern Ireland are left under European Union rules and the European Court of Justice, that will not be acceptable to people in Northern Ireland who want to stay part of the United Kingdom.

When people talk about compromise, they have no understanding of the strength of feeling. The United Kingdom Government cannot compromise any more. They need now to stand up, be strong and speak up for the country they are meant to be running. This Government have a choice to make. I am very pleased that Sir Jeffrey Donaldson—I am not a member or necessarily a supporter of the DUP, but I support anyone in Northern Ireland who speaks up for the union whatever their political party—has come out and said that since the east-west dimension of the Belfast/Good Friday agreement has been broken, why should we carry on with the north-south?

I think it is rather sad that one Unionist is now saying let us have more north/south bodies. Would that really make things better? I do not agree with that, and I am very pleased that Sir Jeffrey has spoken about this. We need to take his warning very seriously. The Government have now got to make it clear that the protocol is not sustainable, as the noble Lord, Lord Caine, and others said. It is not sustainable; it has to go. The Government have to choose: do they want to see stability in Northern Ireland, do they want to see institutions maintained and to keep that balance that has been so difficult over many years, or do they want to keep the protocol? They cannot have both. That is the dilemma the Government face. I hope that committees like this will understand that this is a crucial time. There is no point in having more committees, meetings and lots more reports over the next six months. We do not have six months. I know that the noble Lord, Lord Frost, understands that and I hope the Prime Minister understands that and will now recognise that this protocol has to go, one way or another.