Protocol on Ireland/Northern Ireland (EUC Report)

Lord Caine Excerpts

Monday 13th September 2021 Grand Committee

[Lord Caine (Con)]

My Lords, it is a pleasure to take part in this important debate today, and a privilege to serve on the European Affairs Committee’s Protocol on Ireland/Northern Ireland Sub-Committee, so expertly chaired by the noble Lord, Lord Jay of Ewelme. Our committee, as has been said, brings together a wealth of experience on Northern Ireland including three former Ministers in the Northern Ireland Executive, a former Secretary of State for Northern Ireland, and my own rather more modest contribution as a special adviser for some 13 years. We not only represent all strands of opinion in this House, but also the main unionist and nationalist traditions in Northern Ireland. For the avoidance of doubt, while I strongly associate myself with the former, I will always value and deeply respect the latter. The fact, therefore, that our committee was able to produce a unanimous report does, I believe, give it a significant weight, and I trust that it will be regarded as a serious and well-informed contribution to this vexed issue of the Northern Ireland protocol.

I played absolutely no part at all in the negotiation of the current version of the protocol, as my time in the Northern Ireland Office came to an end on 24 July 2019, at the time Mrs May relinquished office. I did, however, have what might be described as a walk-on part in some of the discussions that formed the backdrop to the previous version of the protocol. I would like to share a couple of thoughts on that today which I believe are still relevant.

First, it always seemed to me that in that crucial period after the triggering of Article 50 and in the run-up to what became the joint report of 8 December 2017, the UK Government far too readily accepted the EU-Irish interpretation of what was required to protect the single market, prevent a hard border on the island of Ireland and preserve the Belfast agreement in all its parts. It did so, I regret to say, with very little involvement of the department of state responsible for Northern Ireland. Indeed, the first time most of us saw the draft of the joint report was on the morning of Monday 4 December 2017, while the Prime Minister was on the train to Brussels to finalise it.

Our Democratic Unionist confidence and supply partners had been given an oral briefing the night before—but, crucially, no text—on the basis of which, Mrs May’s political advisers assured her that everything was fine. Well, it took little more than a few seconds to glance at the text to see that this could not possibly be the case. We were frankly shocked at what we saw. On seeing it, even the then Permanent Secretary at the Northern Ireland Office rushed into the Secretary of State’s office and said, “I don’t see how the DUP could possibly agree to this”, at which point I added, “I don’t see how the Secretary of State and I can possibly agree to this”. At a meeting the following day in the Cabinet Room, I stated that the document had every hallmark of having been drafted in Dublin, at which point one very, very senior official replied, “That’s because it largely was”.

As a result, as is well known, Mrs May was forced to return from Brussels that day, and there then ensued four days and late nights of discussions with the DUP, including my noble friend Lord Dodds of Duncairn, and the Commission in an attempt to salvage the situation and keep the Government together. In classic EU negotiating fashion, we were unable to remove any of the agreed text and therefore had to resort to adding language, including paragraph 50, on unfettered access, to counter paragraph 49, which contained the dreaded backstop, in an attempt to come up with something we could live with. Early on the Friday morning, Mrs May did indeed fly to Brussels and sign the joint report. Regrettably, the die had been cast and whatever way we tried to present the situation, the principle that Northern Ireland would be treated separately from the rest of the United Kingdom had been conceded. Thereafter, the debate was about how that separate treatment might manifest itself. To me, this was a fundamental mistake that has dogged us ever since.

My second, briefer, point concerns the EU, which, for whatever reason, seems to see Northern Ireland through predominantly nationalist eyes and the 1998 agreement almost exclusively through strand 2, the north-south relationship, with everything else subordinate to that. This was made very clear to me at a meeting with the apparently now Eurosceptic Monsieur Barnier in Brussels in June 2018. To my astonishment, I found myself having to explain to him that the 1998 agreement did not establish Northern Ireland as some kind of hybrid state—half in and half out of the UK—that the only choice in the agreement is full membership of the United Kingdom or a united Ireland, and that by disregarding the views of the pro-union majority, he risked undermining the very stability ushered in by the agreement that he was purporting to uphold. At that point he rather bizarrely accused me of wanting no deal, to which I had to reply that, as a remain voter in the referendum, I wanted to leave in good order, consistent with the constitutional and economic integrity of the United Kingdom. It was not a very happy encounter, but it did underline the apparent unwillingness of the Commission to consider all strands of the 1998 agreement equally.

As is frequently said in Northern Ireland, and as was just repeated by the noble Baroness, Lady Suttie, “we are where we are”. To paraphrase Burke, we need to confront the world as it is, rather than how we would like it to be. For my part, I do not doubt the intentions of the Prime Minister and my noble friend the Minister in agreeing the protocol in good faith, and I do not for a second underestimate the near-impossibility of the predicament they found themselves in in the autumn of 2019. I also strongly supported the commitments around unfettered access as set out in the Northern Ireland Conservative manifesto at the 2019 general election, sections of which I drafted. But what is abundantly clear is that, however well-intentioned the protocol is, in its current form it is simply not working, and our report contains many examples to support that view. It has disrupted trade, damaged businesses, hit consumers and contributed to growing political instability in Northern Ireland. It has to change fundamentally, and in this respect I warmly welcome the Government’s Command Paper published in July and the approach of my noble friend.

Let me conclude with a few thoughts. We have been told throughout that checks are an essential part of protecting the EU single market and, as a rules-based construct, the EU’s position is one we all respect. However, it seems to many of us that what has been insisted upon is wholly disproportionate to the actual risk. Leaving aside the utter absurdity of having to check products going from Great Britain to supermarkets in Northern Ireland owned by retailers who have no stores outside of the United Kingdom, it has always seemed to me that the notion of using Northern Ireland to flood the EU single market with illegal produce is somewhat exaggerated when one considers the logistical and transportation challenges involved. To make any money, one would have to be doing it on such a grand scale that it would quickly and easily be detectable by any law enforcement or intelligence agency, of which we still have an extensive capability within Northern Ireland.

Therefore, while I accept that some checks might be necessary, they should only be proportionate to the risk. The Government, our committee and others, including both the Democratic Unionists and the Ulster Unionists, have set out positive and constructive proposals as to how such checks can be mitigated. After all, the EU has obligations under the laws of international trade and treaties it has signed to adopt a proportionate approach to border-related checks and control. It accepts in the protocol that it should

“impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland”.

I sincerely hope that the EU engages seriously around the alternatives because, as my noble friend and the Prime Minister have both made clear, the current situation is not sustainable; indeed, it is becoming increasingly dangerous. It is no good Maroš Šefčovič insisting in Belfast last week that the protocol is not the problem but the solution. Such a position is regrettably a conflict with reality. Without urgent action and remedy, we now risk rushing headlong into a full-blown political crisis from which the institutions established under the 1998 agreement could take years to recover—if they do at all. It would be a supreme irony if the EU’s theological and dogmatic interpretation of the protocol that it insists is designed to protect the 1998 agreement resulted in the destruction of that agreement; an agreement that a number of members of this Committee, on all sides, have spent many years trying to uphold, myself included.

Common sense, pragmatism, proportionality and an understanding that arrangements that do not command widespread consent across the whole community in Northern Ireland can never work are needed from the EU now—perhaps that common sense and pragmatism which were in such short supply in early 2016 but which, had they been forthcoming, might have prevented us from being in this position in the first place. Of course, addressing overzealous implementation of checks does not deal with some of the more fundamental constitutional and democratic issues thrown up by the protocol, something to which I hope the committee will turn its attention shortly, but it would be a start and I wish my noble friend every success in his endeavours.