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

Lord Jay of Ewelme Excerpts

Friday 20th January 2023 Lords Chamber

Moved by

[Lord Jay of Ewelme]

That this House takes note of the Report from the European Affairs Committee Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Scrutiny of EU legislative proposals within the scope of the Protocol on Ireland/Northern Ireland (5th Report, Session 2021-22, HL Paper 177).

[Lord Jay of Ewelme (CB)]

My Lords, like others in this House, I spent many happy hours discussing the scrutiny of European Union documents as a member of the old European Union committees of the House before we left the European Union but, when we talk about the scrutiny of EU legislation applying now to Northern Ireland, we are talking about something very different. We are talking of the scrutiny by Parliament of EU legislative proposals which now or in the future will apply to Northern Ireland because, under the terms of the withdrawal agreement and the Northern Ireland protocol, Northern Ireland remains in the EU single market for goods; and we are talking about EU legislative proposals over which neither the UK nor the Northern Ireland Administration has had any proper say. There is a real democratic deficit here, and this concerns all members of the Sub-Committee on the Protocol on Ireland/Northern Ireland, which I have the honour to chair. Many members of that committee are speaking in today’s debate, no matter what their views on the protocol itself. I thank the staff of the committee, including the staff of the Committees Scrutiny Unit, for the invaluable help and advice that they have given us.

Under the protocol as it currently operates, more than 300 pieces of EU legislation set out in its annexes apply to Northern Ireland now and will continue to do so as they are amended or replaced. In the view of the committee, that legislation must be subject to detailed parliamentary scrutiny. Why? It is because, without that, important areas of law applying to Northern Ireland would go unscrutinised and possibly even unnoticed by Parliament. Such scrutiny therefore is, and will continue to be, a key priority of the committee. The report before the House this morning sets out the committee’s approach to this scrutiny work and its key findings and observations so far.

The report notes that the volume of documents requiring scrutiny has been significantly higher than anticipated before the protocol came into force. During the first year of its operation up to March 2022, the committee wrote more than 90 letters to government Ministers on more than 40 EU legislative proposals applying to Northern Ireland under the protocol. In the current parliamentary Session, the committee has so far written a further 50 letters on 27 legislative proposals. As outlined at paragraph 21 of our report, these cover a wide range of policy areas and are of considerable technical complexity, engaging with many government departments.

In our report, we note that the Government in turn have an obligation to facilitate such scrutiny. We welcome their commitment to do so through the production of explanatory memoranda summarising EU legislation applying to Northern Ireland, including, when requested by the committee, on EU delegated and implementing Acts, and by providing prompt responses to follow-up correspondence from the committee.

However, the report stresses that the Government need to go further. We argue that any entirely new EU legislation within the scope of the protocol of which the EU has informed the UK should automatically be deposited in Parliament for scrutiny at that stage; that the Government should deposit draft EU proposals that are relevant to the provisions of Article 2 of the protocol on rights and individuals; that the Government must also ensure that any other EU legislative proposals with significant implications for Northern Ireland in the context of the protocol are promptly deposited in Parliament; and that the Government need to establish formal mechanisms for prompt communication to Parliament of information received from the UK in the UK-EU joint consultative working group on planned or adopted EU legislation falling within the scope of the protocol.

In their response to our report, which I welcome, the Government went part-way to meeting those points, but there is more work to be done to ensure that their facilitation of parliamentary scrutiny is properly comprehensive. That is the responsibility of all government departments, whose contributions so far have been—how shall I put it?—varied. Some are good, some less so, but, as I mentioned recently to the noble Lord, Lord Benyon, I commend Defra on the quality of its work.

What update can the Minister provide on efforts to enhance the Government’s facilitation of parliamentary scrutiny of EU legislation applying to Northern Ireland under the protocol? In particular, what is his response to the committee’s calls for the Government to maintain and publish an audit or log of all EU legislation applying to Northern Ireland under the protocol that gives rise to issues of regulatory divergence between Northern Ireland and Great Britain?

I am of course conscious that the Government are in the midst of talks with the EU about the protocol, and conscious too that the Northern Ireland Protocol Bill remains before the House. However, we stress that the Government continue to have an obligation to set out to Parliament the full implications of EU legislation applying now to Northern Ireland under the protocol, and that they must set out as a minimum the views on each proposal expressed by the Northern Ireland Executive, when they are functioning, as well as the other devolved Administrations; the Government’s assessment of the merits or otherwise of the proposal; whether the proposal will lead to regulatory divergence between Great Britain and Northern Ireland, and the practical implications of that; what steps the Government are taking to address such regulatory divergence, including considering the case for introducing equivalent measures in England or Great Britain, according to the extent of the Government’s powers of competence in each case; the impact, if any, of the proposals for Northern Ireland’s participation in the UK’s free trade agreements; the relevance and impact of the proposals for Northern Ireland’s participation in UK common frameworks, and how common frameworks intersect with the protocol; whether and how EU legislation will be implemented in domestic law; and what consultation has taken place with business representatives and other key stakeholders on the impact of EU legislation, and whether a regulatory impact assessment has been undertaken. Will the Minister tell us what steps are being taken to ensure that this information, as a minimum, is set out in future in government Explanatory Memoranda?

As well as liaising with the Government in relation to this work, the committee attaches high priority to engagement with other committees of this House and of the House of Commons, with the Northern Ireland Assembly and the Northern Ireland Executive, and with key stakeholders who stand to be affected by EU legislation applying to Northern Ireland. Given the Northern Ireland Assembly’s democratic mandate to represent the people of Northern Ireland, the committee’s engagement with it is particularly important, and I express the hope that difficulties over the protocol can be resolved so that the Assembly and the Executive are once more able to function and to offer their own unique perspectives on the implications of these issues for the people and communities of Northern Ireland that they represent.

A key aspect of that engagement is of course with the EU itself. As I mentioned earlier, the committee has previously drawn attention to the democratic deficit under the protocol as negotiated, agreed and ratified by the UK and the EU, in that significant aspects of EU law, with wide-ranging political and economic implications, apply to Northern Ireland subject to neither the UK Government’s participation in the EU institutions nor to consent from parliamentarians at either Westminster or Stormont. The EU needs to do more to enhance transparency around the application of EU law to Northern Ireland; to take account of the impact of EU law on Northern Ireland’s particular circumstances; and to engage with Northern Ireland stakeholders at an early stage, to give them a voice on the application and implications of such legislation.

In our report, we concluded that the EU should explicitly state whether a proposed EU legal Act engages the UK’s obligations under the protocol; the basis on which such legislation should apply to Northern Ireland; and how the EU has taken into account Northern Ireland’s particular circumstances in the application of the legislation in question. I conclude, as does our report, by stating:

“In the context of the ongoing discussions between the UK and the EU on the future of the Protocol, all sides have a continuing obligation to ensure that the operation of the Protocol … takes into account the delicate balance between North-South and East-West relations as provided for under the Belfast/Good Friday Agreement, and to demonstrate how it is compliant with that Agreement in all its Strands.”


I beg to move.

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[Lord Jay of Ewelme (CB)]

My Lords, I am very grateful to the Minister for his reply to the debate. I am also very grateful to all Members who have spoken from all sides of the House in what has been a very wide-ranging debate. In fact, the debate has ranged rather wider than the subject of the report. If I may, I will return for a moment to the report to say that I think the debate has also shown that, while scrutiny may seem dry and technical, it really matters. It matters to the businesses and the people of Northern Ireland. I commend the report to the House.

Motion agreed.