Protocol on Ireland/Northern Ireland (EUC Report)

Lord Kerr of Kinlochard Excerpts

Monday 13th September 2021 Grand Committee

[Lord Kerr of Kinlochard (CB)]

I have very little experience of Northern Ireland and am in awe of the expertise in front of me in this Committee. I did work under the noble Earl, Lord Kinnoull, in his chairmanship of the European Union Committee and on the first of the reports he described today, but I was then exiled for bad behaviour to the icy wastes of the International Agreements Committee. I learned a very great deal from this new report and have very little to add to it, except three glosses.

However, I will first comment on one or two things that have happened since, particularly the July White Paper, the speech the noble Lord, Lord Frost, made in Oxford on 4 September, Vice-President’s Šefčovič’s speech the other day and the statement at the weekend from Sir Jeffrey Donaldson. I should say at the outset that I too dislike the protocol intensely. Like the previous Prime Minister and the present one, I thought that a customs frontier inside a state was something no Prime Minister could possibly accept. I was a bit surprised when the present Prime Minister enthusiastically signed up for it. But, as the noble Baroness, Lady Suttie, memorably said, we are where we are.

I am surprised to see the White Paper attack the protocol so strongly. Sir Jeffrey Donaldson calls for it to be thrown away, but he does not tell us what he thinks should replace it. I must say, in my view, the return of a hard border across the island of Ireland would be a complete disaster, not just for Northern Ireland but for the United Kingdom and its reputation and external relations, particularly with the United States—I used to work there and know about that. The speech of the noble Lord, Lord Frost, at Oxford was more constructive, but only marginally. The core of his attack on the protocol came when he said that

“solutions which involve ‘flexibilities’ within the current rules won’t work for us. The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.”

So why did we agree to it?

I confess I find Mr Šefčovič’s answer rather plausible:

“Everyone around the table understood what these compromises meant in practice,”


he said on 9 September.

“And the implementation of this agreement will continue to require compromise from both sides.”

That is, of course, a central theme of the Committee’s report: the need for both sides—the UK and the EU—to demonstrate greater flexibility in operating the protocol. I agree.

Of course, the noble Lord, Lord Frost, is perfectly correct when he says that the protocol could be changed by mutual agreement, as Article 13(8) acknowledges. I suspect that some of our EU friends would be perfectly willing to consider certain of the changes demanded in the White Paper—for example, Article 10 of the protocol, in respect of subsidies in Great Britain. Certain other proposals would plainly never secure mutual agreement—for example, the suggestion that the EU should concede that the application in Northern Ireland of their single market laws should not be under the jurisdiction of their court, as the protocol says, but should be a matter for international arbitration. It seems to me that Mr Šefčovič was again nearer the mark when he said:

“The Protocol is not the problem. On the contrary, it is the only solution we have. Failing to apply it will not make problems disappear.”


Renegotiating it

“would mean instability, uncertainty and unpredictability in Northern Ireland.”

Now for my three glosses on the report. First, I recall from my Foreign Office days how, following the Good Friday agreement and the Belfast treaty, we immediately strengthened inward investment teams in the United States and other diplomatic missions, and it worked: the end of the Troubles, as we saw it. Northern Ireland’s highly educated and efficient workforce made it a very attractive destination for investment. It should be even more attractive, now it is the only place in the world where manufactured goods will circulate freely throughout the EU and the UK—a point the report makes. It is not a point the White Paper makes. Finding the next Bombardier would be much easier if the Government were to stop attacking the protocol.

To me, the most surprising passage in the committee’s report is at paragraph 122, where the noble Lord, Lord Frost, is quoted as, not seeing

“a case for the Government setting out”

the inward investment benefit of the protocol and adding, rather elliptically:

“I do not think it totally makes sense to encourage a situation that generated more of something that is a problem”


I am not absolutely sure I understand exactly what that means, but in my book, inward investment is not a problem and deterring it by encouraging uncertainty and instability is. Do we not owe it to Northern Ireland to do better? Surely, a Government who believe in the market should not be complaining about the relative growth of intra-Irish supply chains and direct trade flows between Northern Ireland and the rest of the single market directly, rather than over the land bridge across Great Britain. Water tends to flow downhill, and the more efficient the Northern Irish economy, the better for the people of Northern Ireland. I believe the Government should start to sell the single market opportunity.

Secondly, I was glad to see that the committee intends to come back to the question of the democratic deficit. For me, that is a central and serious problem. Since Northern Ireland is not represented in Commission, Council or Parliament, ways must be found to ensure that these institutions take account of Northern Irish concerns in the single market laws they write, and Northern Ireland must apply. The report lists a number of ways. For my part, I strongly agree with the suggestion from both the DUP and the UUP that Northern Ireland Ministers must be allowed to play central parts—not merely attending as observers—when the withdrawal agreement Joint Committee considers EU laws that would apply in Northern Ireland. I also believe the Dublin Government could help. I have long been impressed by the pleas from the noble Lord, Lord Empey, for greater use of the north-south institutions created by the Belfast treaty. I was very sorry to see Sir Jeffrey Donaldson’s threat to boycott them. I think that would be a serious self-inflicted wound.

My additional suggestion would be to consider the precedent of the informal arrangements the EU makes to inform acceding states about laws that will apply to them on or shortly after accession. I was in COREPER and saw ambassadors from non-EU states sitting in on our debates, in working groups, before their countries joined the European Union. Such arrangements might be hard to negotiate, but we should be trying. Something similar, specific to Northern Ireland and to single market laws, might be possible. It would be completely outside the treaties and so would depend on trust and good will.

This brings me to my final point. For me, the sub-committee’s key finding is at paragraph 223, where it concludes:

“in order to maximise the prospect of the EU taking a flexible approach to the implementation of the Protocol, the Government needs to rebuild trust by demonstrating its good faith. This requires open and constructive engagement, meetings its legal obligations and fulfilling its outstanding political commitments.”

I was in Washington when John Major and Tony Blair transformed our standing in America with Bill Clinton and John McCain by demonstrating that they were trustworthy on the Northern Ireland issue.

Of course, it would be possible to cut down the number of supplementary customs declarations. I am sure that point is absolutely correct; it is an absurd number now. I suspect that that is what Mr Šefčovič had in mind when he said last week:

“Let’s see what can be done to further ease the supply of goods”.


We should take up that offer from him. With great respect to the noble Lord, Lord Frost, I find it implausible in practice that he would reject

“solutions which involve ‘flexibilities’ within the current rules”.

I hope the noble Lord drops the confrontational chest-beating tone. A good rule in negotiation is not to insult the other side.

I end with an olive branch—something the noble Lord, Lord Frost, said which seems 100% correct. In paragraph 268 of this admirable report, the sub-committee has him saying:

“it is important that we all try to act in a way that is conducive to a good negotiation”.

That is quite right. “Physician, heal thyself.”