Draft Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020

Karin Smyth Excerpts

Thursday 26th November 2020 General Committees

[Karin Smyth (Bristol South) (Lab)]

It is a pleasure to serve under your chairmanship, Ms McVey. I echo the Minister’s thanks to the various House staff who have allowed us to meet today and on other occasions.

We are here today because we have with the Irish Government a joint and solemn responsibility to the people of Northern Ireland. Although Brexit divides the UK and Ireland into different economic blocks, the protocol sets out our need to have regard to the historic ties, recognises the unique and significant challenges that exist on the island of Ireland, and emphasises that to ensure democratic legitimacy there should be a process of consent—the subject of the regulations before us today, which we support. The instrument looks like a dry, technical piece of process legislation, but it is much more than that.

We have real concerns on which I seek assurances from the Minister. They centre on the unsatisfactory nature of the fact that we are agreeing here in Westminster a process for those elected to Stormont to agree a voting mechanism on a deal that we do not yet have. It invokes the principle of consent and notions of democracy, on which I take issue with the Minister. We also have concerns about the destabilising nature of the timing of the votes.

First, we are agreeing a process today for consent to something that we do not know: the operation of articles 5 to 10 on customs and goods across the island of Ireland. I will not rehearse all the things that we do not know with only 36 days to go, but, as has been the case in the past four years, the lack of certainty and the way in which the delicately balanced unique circumstances of Northern Ireland have been treated does not bode well, and it is not acceptable for the Government to ask us to agree legislation without having agreed what the arrangements are in 36 days’ time.

Secondly, I want to highlight the use of the word “consent” by the Government. In the Command Paper, “The UK’s Approach to the Northern Ireland Protocol”, published in May 2020, the foreword highlights on page 3 that,

“The Belfast Agreement is built on the principle of consent.”

The next paragraph states:

“The vital importance of consent is recognised in the provision for alignment in the Protocol to be disapplied”,

as the Minister has said, and that

“Embedding that recognition of consent…was intrinsic to its acceptance by this Government.”

That is a clear signal, as the Minister outlined, of the linkage of the 1998 agreement and this SI. On the next page, the Chancellor of the Duchy of Lancaster talks about protecting the “Belfast (Good Friday) Agreement” , which is referred to on page 5.

Language matters, particularly in the context of Northern Ireland. The Minister knows that every word of every document is carefully crafted and rigorously studied. There are many examples from the past year of how this democratic consent mechanism has been used to placate the Brexiteers in his own party and the entirely legitimate concerns of Unionists about what the Prime Minister agreed to in order to secure the withdrawal agreement.

This SI deliberately invokes the carefully crafted principle of consent about the constitutional issue from the 1998 treaty, but it is a different mechanism. It is designed for a different purpose and it would have been better to have perhaps used different nomenclature. I know the Minister argues that the mechanism is different. It is passable by a majority vote, because one is part of an international treaty and one enacts something into domestic law, but, having linked the two for political expediency, retreating into legalese and hair splitting is not helpful to trust in the Government’s intent.

The word “democratic” is also invoked carefully here. Indeed, writing in The Belfast Telegraph, the Chancellor of the Duchy of Lancaster and the Secretary of State said of this proposal,

“Critically, any arrangements for implementing the Protocol will only be able to last as long as they command the support of democratically-elected local politicians. The future is firmly in Northern Ireland's hands.”

Patently, that is not the case. In this negotiation between the UK and the EU, Northern Ireland has never been in control, and this statutory instrument simply allows Assembly Members to agree—or not—to what others have negotiated. The UK Government’s proposal to mitigate the impact of UK Government policy and future alignment—or not—with the European Union is also a UK Government political decision.

To reverse some of the damage to trust in relationships in the past four years, there has to be a more serious commitment by the UK Government to real democratic oversight of the entire protocol, within the context of the 1998 agreement, by the people of Northern Ireland. I have asked several times of this and previous Governments how the enactment of the backstop and now the protocol interplays with the provisions of the north-south and east-west provisions of the Belfast/Good Friday agreement, and I have never had a good answer.

The Joint Committee, the Specialised Committee and the joint consultative working group, plus the process to consent to something that we do not already know, make the whole issue much more problematic and in need of resolution. We need a commitment to be clear on the interrelationships of those bodies and how the Northern Ireland voice is heard and counts, and an assurance that the future really is in the hands of the people of Northern Ireland. I would like the Minister to outline any further thoughts that the Government have on how and when that can happen.

We are also concerned about the destabilising nature of the process, which the Minister has outlined without the context. Article 18 offers the opportunity of a vote, but the SI essentially forces one—it says there will be a vote. The Minister may wish to clarify that, but we might need to consider some flexibility, because the timing and process of a vote within the current electoral cycle is concerning. We have Assembly elections in 2022 and the consent vote that we are debating in November or December 2024. I remind hon. Members that we are also due a general election at that time.

If there is a simple majority in the consent vote in 2024, a two-year review of the articles in the protocol takes us to 2026. It is then two more years to another vote in 2028. If it is rejected in 2024, there will be a need to reopen negotiations on avoiding a hard border, repeating the circular and damaging debate of the last four years, between 2024 and 2026. There is also the prospect of more Assembly elections in 2027. If the consent vote that is part of the SI is approved in 2024, there will be another vote in 2032. That is a long process and a deeply concerning prospect.

There are too many opportunities for division. As we hear from the Government that they are seeking to move away from alignment with the European Union, it appears inevitable that, under their watch, those divisions will continue to be laid bare in Northern Ireland. How much consideration have the Government given to the electoral cycle and the timetable proposed in the SI? What will they be doing to avoid the economic and political instability it portends?

We all need a deal, and one that means that all the difficulties of separation between our two countries are minimised and that the provisions in the SI are part of the dull and technocratic process that the Government are keen for us all to believe in. The signs are not promising, however, and I hope that the Minister will reflect on the issues I have raised. I hope he is assured, however, that the Opposition are ready to do all we can to ensure that we uphold our solemn commitment to the people of Northern Ireland to a strong economy and to peace, stability and reconciliation in the coming difficult years.