Northern Ireland Protocol

Iain Duncan Smith Excerpts

Thursday 15th July 2021 Commons Chamber

[Sir Bernard Jenkin]

I could not be more grateful for that intervention, and I will amplify the points that the right hon. Gentleman makes, because he is absolutely right. Have no doubt that there has been and continues to be diversion of trade due to the protocol. Article 16 exists in order that either party can take unilateral action to prevent that.

The Central Statistics Office Ireland reports that Republic of Ireland exports to Northern Ireland in the first four months of this year increased by 25% and by 40% relative to the first four months of 2019 and 2020. Northern Ireland exports to the Republic increased by 59% and 61% on the same comparison. Some are heralding that as the birth of an all-Ireland economy, but that is wholly contrary to the letter and spirit of the protocol.

The motion in my name continues by noting that

“significant provisions of the Protocol remain subject to grace periods and have not yet been applied to trade from Great Britain to Northern Ireland and that there is no evidence that this has presented any significant risk to the EU internal market”.

Those grace periods, applying to chilled meats, medicines and the requirement of export health certificates, are intended to lapse in the coming months. The UK Government may choose to extend them, as we already have, with or without the EU’s permission, and they would be justified in doing so because the grace periods are not doing any harm, but that is not a long-term solution.

The Irish Minister for Foreign Affairs, Mr Simon Coveney, says that the grace periods exist

“to give supermarkets in particular, the opportunity to readjust their supply chains to adapt to”

what he refers to as “these new realities”. I am afraid that confirms in the minds of many that the protocol is being used to create diversion of trade.

Diversion of trade as a goal can form no basis for the rebuilding of trust and public confidence in both communities in Northern Ireland. Article 6 of the protocol requires the EU and the UK to

“use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom”.

I regret to say that, thus far, there is little evidence to suggest that the Republic of Ireland or the EU are attaching any importance to that vital commitment, and that is what is destroying trust.

The motion then states that this House

“regards flexibility in the application of the Protocol as being in the mutual interests of the EU and UK, given the unique constitutional and political circumstances of Northern Ireland; regrets EU threats of legal action; notes the EU and UK have made a mutual commitment to adopt measures with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible; is conscious of the need to avoid separating the Unionist community from the rest of the UK, consistent with the Belfast (Good Friday) Agreement; and also recognises that Article 13(8) of the Protocol provides for potentially superior arrangements to those currently in place.”

That is the real point of the motion: that the protocol is only one solution to the challenge of avoiding a hard border in Ireland while also respecting the integrity of the EU and UK internal markets.

There always was more than one way to skin a cat, and the EU agreed to that in article 13(8). Unfortunately, the EU seems implacably opposed to any discussion about how a subsequent agreement under article 13(8) of the protocol could supersede the protocol in whole or in part. Paragraph 25 of the political declaration accompanying the withdrawal agreement also envisaged:

“Such facilitative arrangements and technologies will also be considered in alternative arrangements for ensuring the absence of a hard border on the island of Ireland.”

Sadly, the protocol was not superseded by the trade and co-operation agreement, but now is the time for the EU to accept that its application of the protocol is not achieving its legitimate aims. Either the protocol must be changed by agreement or the UK must exercise its sovereign right to jettison the whole thing as a fundamental threat to peace and stability in Northern Ireland and to the integrity of the United Kingdom.

The EU could start by agreeing to an expanded category of goods that are not at risk of onward travel to the Republic of Ireland. We already have an authorised trader scheme for supermarkets; that could also be expanded, creating far less paperwork than there is now and a permanent exemption from unnecessary sanitary and phytosanitary checks. The EU could also agree to allow non-EU-compliant UK products to be imported into Northern Ireland if they are not at risk of moving into the rest of the EU internal market. The question is whether the EU is capable of being flexible and pragmatic, or whether it will continue to insist on imposing its rules, whatever the cost to peace and stability in Northern Ireland.

The noble Lord, Lord Trimble, was one of the two leaders who won the Nobel peace prize for negotiating the Belfast/Good Friday agreement. He has proposed a new solution: replacing the protocol with a system of mutual enforcement. This would mean that the UK and the EU would each ensure and guarantee that goods travelling across the shared border would be compliant with each other’s standards. Light checks would occur, but away from the border, and both sides would share relevant data on exports.

That proposal would remove the need for direct EU jurisdiction over Northern Ireland; Northern Ireland would be under UK law and fully restored as part of the UK internal market. It would ensure the absence of any new infrastructure on the border itself, it would guarantee the integrity of the EU internal market and, most importantly, it would accord equal respect to the concerns of both communities in Northern Ireland in a way that the present protocol utterly fails to do.

The proposal has not yet been tabled by the UK Government, but my understanding is that they broadly support the sentiments of the motion. Ideally, the EU would accept its obligations under paragraph 25 of the 2019 political declaration and agree in principle that the protocol will be superseded by these pragmatic and practical proposals.

We must hope that the EU lives up to its own ideals. Article 8 of the treaty on European Union obliges the EU to

“develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness…based on cooperation.”

If the EU refuses in principle even to open these discussions, the UK will have no option but to resort to article 16 of the protocol and take unilateral action. The world is watching how the EU is dealing with the United Kingdom.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

Sometimes, over the course of this, the view is taken in the EU, or even in Ireland, that somehow the rest of the UK, or Great Britain, has no regard at all for the status of Northern Ireland in the United Kingdom. May I just read back to my hon. Friend two facts from a recent poll, which shows that to be completely wrong? When asked whether it is unfair to Northern Ireland that it is treated differently from the rest of the UK, over 50% of the residents from the whole of the United Kingdom said, yes, it was unfair. The second question, which is really important, was: how important or unimportant is it that Northern Ireland remains a part of the United Kingdom. Again, well over half—53%—said “important”. Interestingly, that is a margin of 41% over those in the United Kingdom who said it was unimportant. We want Northern Ireland to remain a part of the United Kingdom.

[Sir Bernard Jenkin]

My right hon. Friend puts down an important marker. We can dismiss any idea that the United Kingdom as a whole is not interested in the interests of Northern Ireland or in Northern Ireland remaining part of the United Kingdom. That is an established fact and he has dealt with that very capably.

In conclusion, the world is watching how the EU is dealing with the United Kingdom. The UK will offer agreement on what the problems are and how they must be resolved. Together, the EU and the UK can look for common ground about how to do so; otherwise the rest of the world will see that the grounds for invoking article 16 have indeed already been met, and action will have to be taken.

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[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

It is a pleasure to speak in this debate. I congratulate my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) on securing it; it is long overdue, but through his persistence we have achieved it.

It is also a pleasure to follow the hon. Member for Upper Bann (Carla Lockhart). Before I get on with my own thoughts, I want to pick up on something she said. She is quite right that if anyone reads the Belfast/Good Friday agreement, they will see, first and foremost, that the border is not specifically mentioned in it. We have had all the wonderful great and good wandering around demanding that the agreement stand, when in fact the border is never once mentioned. Secondly, there has always been a border—my right hon. Friend the Member for Forest of Dean (Mr Harper) has made the point that there is a border for VAT, excise and currency. The whole point that the hon. Member for Upper Bann makes is right, and it stands, but that is the bit that has gone missing.

The more something is said and the bigger the lie, the more people believe it—but it has been a lie from start to finish, which has meant that there has been no rational discussion of exactly what will happen under the protocol and thereafter. The protocol itself has failed to support the Belfast/Good Friday agreement, is creating division and does not really keep an open border between Northern Ireland and the Republic of Ireland.

Lord Trimble has been quoted several times. I have to say that it is only in this country that a Nobel peace prize winner is not really given great distinction. Interestingly, when we took Lord Trimble to Brussels, he was treated with the utmost respect; when he spoke, Mr Barnier and everybody else fell silent and agreed with him. He said that the arrangements that needed to be in place were those that I will come to later—essentially, mutual enforcement. As he says, not only does the protocol

“shatter Northern Ireland’s constitutional relationship with the UK,”

as has been referred to, but it subverts the very agreement that they keep on saying that they want to preserve: the Belfast/Good Friday agreement. It is breaking that agreement and directly setting one part of the community against the other because of the way in which it is implemented and because of its very nature.

The protocol simply cannot stand. I disagree with the Chair of the Northern Ireland Affairs Committee, my hon. Friend the Member for North Dorset (Simon Hoare); I do not think that this is just about a group of people picking away at it and trying to object to it on ideological grounds. The reality is that, practically, it does not work—and if it does not work, it has to be radically changed or replaced. I am for replacing it.

The other bit that has come out of this is that the EU has become very partisan. A claim was made that somehow the British Government have to be completely independent of this, but they are the Government of Northern Ireland as well. The reality is that the European Union has become very partial. It has sided with one side of the argument and has driven this as a weapon aimed at the Brexit negotiations from start to finish.

I went with a team of people to see Monsieur Barnier, and, as was said earlier, we presented mutual enforcement to him at the table. That was before the British Government got in a mess over their arrangements in 2018 and came up with that poor resolution. The EU team listened, and we corresponded with them for at least another two to three weeks about where this could go. It was interesting that they were open-minded about it until the UK Government decided that they were going to go for equivalence and all the rest of it, and it did not work. They were very keen on the proposal and knew it would work. This is the point I make: there is another solution that will work.

It is worth reminding those who keep saying, “Well, you all voted for this,” that we voted for it because we knew it was not permanent. That was made clear in every single article: article 184 of the withdrawal agreement, article 13 of the protocol and, importantly, paragraph 35 of the political declaration, which envisages an agreement superseding the protocol with alternative arrangements. The idea that this is somehow set in stone and we only have to work to make it better is an absurdity in itself.

It is something to watch the Irish Foreign Minister almost boasting that diversion of trade is taking place which will only settle the natural order of things through the supply chains—these new realities. This is a breach of article 16, and it is very clear that he has admitted that. That is exactly what is going on, and it should have never been agreed to in the first place.

I want to turn my attention now to what the alternative is. We now have a situation where there are two and a half times more checks at the border in Northern Ireland than there are in Rotterdam. Northern Ireland represents 0.5% of the total population of the EU, but it now has 20% of the EU’s customs checks and more checks than France in total. This is quite ludicrous and an utter disaster. The solution, therefore, is to move to mutual enforcement, where both sides take responsibility for their own requirement to uphold the other side’s regulations. We do not need a border, but if prosecutions need to take place, the UK will prosecute those who transgress, and the EU will do the same.

[Sammy Wilson]

Does the right hon. Gentleman accept that the most important part of mutual enforcement is that there will no longer be any need for EU law to automatically apply to Northern Ireland, and therefore the constitutional integrity of the United Kingdom would not be compromised?

[Sir Iain Duncan Smith]

I am going to refer to the right hon. Gentleman as my right hon. Friend for this because he is absolutely right. That is the key point about mutual enforcement. We have been working with a group of the brightest and smartest lawyers—experts in European law, experts in trade law and experts financial regulations—and it is quite fascinating. They believe that if we make it an offence to export items in breach of EU law across the north-south border, that becomes our responsibility and the EU’s responsibility. That is exactly the point that my right hon. Friend makes. The EU does exactly the same for us, and it does not breach our sovereignty since the exporters are opting to comply with the importers’ laws anyway from the moment their goods cross the invisible border.

I simply say in conclusion to my right hon. Friend the Minister that the Government now have to make the point that this is the way forward. They have to present this to the EU, and the EU has to recognise the damage it is doing in Northern Ireland and here in the United Kingdom. I urge her to press forward with these arrangements and agree that this is the solution to an outstanding problem.

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[Mr Mark Francois (Rayleigh and Wickford) (Con)]

If I may, I shall begin by commending my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) for so ably introducing this very important debate and by agreeing with him that we should thank the Backbench Business Committee for finding valuable time for it, especially as our Prime Minister is now due to meet senior members of the Irish Government on these matters only next week.

As my hon. Friend the Member for Harwich and North Essex has pointed out, the Northern Ireland protocol contains a safeguarding clause in article 16 in the event that the protocol is not working as intended. Either party can activate article 16, in which case they then have to proceed under the provisions of annex 7. It should be remembered that the European Commission, not the UK Government, invoked article 16 on the evening of 29 January 2021. If the rumours were to be believed, Dublin was not even consulted about this action. Dublin found out from London, not from Brussels. The supreme irony is that, in doing so, the European Commission, which took the decision, effectively sought to create a hard border on the island of Ireland for medicines and, crucially, vaccines, despite having sworn blind for three years, during what I describe as the battle for Brexit in this House, that that was absolutely the last thing that they ever wanted to do. I am sure that the Chairman of the Northern Ireland Affairs Committee, my hon. Friend the Member for North Dorset (Simon Hoare), who has helpfully reassured us this afternoon that he is not an apologist for the European Union, will be the first to acknowledge that.

Invoking article 16 in that way was, I think it is fair to say, widely derided as a mistake, and the European Commission withdrew it by the cold light of morning. The Commission was really doing it for internal reasons, because of, among other things, the slow roll-out of vaccines, unfortunately, on the continent; nevertheless, the fact that it did it, when it clearly should not have done, means that our Prime Minister is absolutely entitled, as he has said many times, to keep article 16 on the table if the European Commission refuses to be reasonable in renegotiating the Northern Ireland protocol, or even replacing it.

One thing, though, that all protagonists in this debate seem to agree about is their willingness and, in fact, strong desire to uphold the 1998 Good Friday agreement, which has indeed been crucial in bringing peace and stability to Northern Ireland for over two decades. It is fundamentally based on the principle of consent, as the leader of the Democratic Unionist party, the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson), and his colleagues have reminded us, but it is now as plain as a pikestaff that the Northern Ireland protocol no longer enjoys the consent of the Unionist community in Northern Ireland.

If the House will not take that from me, it could take it from the new leader of the DUP, whom I wish all the best with his onerous responsibilities at this time. If the House will not take it from him, it could take it from the Nobel prize winner Lord Trimble, who has pointed out, importantly in this context also to audiences in the United States, who follow these matters closely, that the Northern Ireland protocol no longer enjoys the consent of the Unionist community in Northern Ireland. Very wisely, in my view, he has recommended a system of mutual enforcement as a far better alternative.

[Sir Iain Duncan Smith]

Does my right hon. Friend recognise that Lord Trimble is not just a Nobel peace prize winner, but one of the two architects of the Belfast/Good Friday agreement, the other of whom is now dead, and therefore the greatest authority on what is going on? I absolutely agree with my right hon. Friend. Is it not the reality, therefore, that those who had nothing to do with it now say they are experts, when the real expert says that it is exactly what it is—damaging?

[Mr Francois]

My right hon. Friend is absolutely right. Lord Trimble helped to create the Good Friday agreement, at great risk not just to his political career but arguably to his own life, and not least because of that he is respected around the world. If people will not listen to me or even, though I find it difficult to believe, to my right hon. Friend, they should listen to David Trimble.

In February 2021, the European Research Group, which I have the privilege to chair, produced a detailed report on the Northern Ireland protocol, entitled “Re-uniting the Kingdom: How and why to replace the Northern Ireland Protocol”. A copy has been lodged in the Library of the House of Commons. The executive summary of that document says:

“The European Commission’s bungled invocation of Article 16, regarding vaccines, in late January 2021 has, rightfully, been widely criticised. Nevertheless, it has created a unique political opportunity for the United Kingdom Government to seek to negotiate a replacement of the Protocol with alternative arrangements, based on the concept of ‘Mutual Enforcement.’…If the EU remains unwilling to contemplate this, the U.K. Government should retain the option of invoking Article 16 itself and/or consider instigating domestic legislation, to replace the Protocol, via utilising Section 38 (The Sovereignty Clause) of the European Union (Withdrawal Agreement) Act, 2020.”

We want to renegotiate this, and we hope that the European Commission and member states will be reasonable. After all, it swore blind that it would never remove the backstop, but after three months of negotiation it did, so there is a clear precedent for it. We would rather do this in a spirit of mutual negotiation, but I am reminded of the words of the late Baroness Thatcher, who famously said: “Northern Ireland is as British as Finchley”. Baroness Thatcher may no longer be with us, but her spirit lives on. We must retain Northern Ireland as a fundamental part of the United Kingdom. If, when push comes to shove, that means that the Northern Ireland protocol has to go, so that the vital principle of consent within the Good Friday agreement can be maintained for the peace and wellbeing of the people of Northern Ireland, then so be it.

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[Louise Haigh (Sheffield, Heeley) (Lab)]

It is pleasure to follow the hon. Member for Gordon (Richard Thomson). I add my thanks to the hon. Member for Harwich and North Essex (Sir Bernard Jenkin) and the Backbench Business Committee for securing this debate. It has been an important debate to air the issues with the Prime Minister’s Brexit deal and the subsequent Northern Ireland protocol. It is clear that there is agreement across this House on the text of the motion in front of us today and the need for flexibility, for the checks to be proportionate, and for solutions to be found through agreement and compromise with the European Union. It has been helpful for that to be made clear today.

The issues are clear. As the hon. Member for Harwich and North Essex laid out very clearly in his opening speech, there has been a strain on power sharing and increasing tensions. Brexit has always had the potential to unsettle the delicate balance of identities across these islands. It was helpful for the hon. Member for Belfast South (Claire Hanna) to put on record her acknowledgement that there are parity of esteem issues at play here. It has been important for us all to acknowledge the real hurt and pain that was expressed by our DUP colleagues on behalf of the Unionist community in Northern Ireland. This has caused real pain and hurt in Northern Ireland, and it is important that we all acknowledge that.

The Prime Minister made promises to the people of Northern Ireland that there would be no border with Great Britain, knowing full well that his Brexit deal would introduce barriers across the Irish sea. He made promises to the Unionist community, because he knew that economic separation would be unacceptable, and the political instability that we have seen over recent months has its roots in the profound loss of trust that that has caused.

As the leader of the Labour party and I heard loud and clear in Northern Ireland last week from Unionist leaders, trust is at rock bottom. The language that has been repeatedly used is one of betrayal that they and the economic integrity of the United Kingdom have been sacrificed to narrow party interests.

Trust is absolutely essential in Northern Ireland; it is what has secured and has always sustained the Belfast/Good Friday agreement. In moments of instability, what Sir John Major, Tony Blair, Mo Mowlam and the right hon. Member for Skipton and Ripon (Julian Smith)—Labour and Conservative—all understood was that trust, leadership and partnership are paramount to finding a way forward in Northern Ireland.

As a co-guarantor of the Belfast/Good Friday agreement, the Prime Minister owes it to the people of Northern Ireland to restore the trust that he has squandered, but his custody of that precious agreement has been designed to shore up his own party advantage, and nowhere can we see that more clearly than on the Northern Ireland protocol. It is reckless and foolish that, after insisting that he would never place barriers down the Irish sea, he negotiated just that, and after denying that he had done it for an entire year has now started to renege on his own deal.

The strategy of brinkmanship and picking fights using Northern Ireland as a political football is not the work of a serious politician, and led to diplomatic rebuke from one of our closest allies, the United States. Communities are sick and tired of this in Northern Ireland. They just want to see serious solutions, and as we have heard today, solutions are available. We have heard plenty of suggestions, and I would welcome the Minister’s response and her assessment of how feasible many of those suggestions are.

Several political parties in Northern Ireland, the CBI, farmers and businesses right across the UK have all advocated for the Government to negotiate a veterinary agreement with the EU. Just this morning, Aodhán Connolly told the Northern Ireland Affairs Committee that the solution is a veterinary agreement with a guillotine clause. That would bring assurance to Northern Ireland and benefit food exporters right across the UK. The Prime Minister promised an agreement of this kind, drawing up trade negotiations with the EU, but has failed to deliver, when countries such as New Zealand and Switzerland have succeeded. More than a quarter of all trade to Northern Ireland is subject to onerous SPS checks, largely on food and agricultural products. Such an agreement would lower the overwhelming number of checks across the Irish sea.

[Sir Iain Duncan Smith]

The hon. Lady has, interestingly, reopened the issue of mutual enforcement and recognition. She referred to the New Zealand agreement on SPS foods and so on. That agreement is clear: it recognises the authority of New Zealand veterinary organisations to approve their products with the regulations in force in the European Union and the single market. That is exactly what we have been proposing today with mutual enforcement, and I am glad the hon. Lady is on side with that.

[Louise Haigh]

Of course we have studied the suggestions made by Lord Trimble, who we all thoroughly respect as a co-author of the Good Friday agreement. I would welcome the Minister’s comments and remarks on the Government’s strategy to propose and negotiate such an agreement with the European Union. Mutual enforcement relies on trust, and we need a veterinary agreement that respects the unique circumstances of Northern Ireland. Although we can look to New Zealand and Switzerland as potential models, we need a new model that recognises this unique circumstance, with its own regulatory mechanism to enforce it.