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

Lord Ponsonby of Shulbrede Excerpts

Friday 20th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Jay, for his skilful and diplomatic chairing of the sub-committee. He has produced a report of real substance which this House has benefited from.

The protocol is a unique arrangement. It was designed, as we know, to manage the consequences of the Government’s approach to Brexit, avoid a hard border on the island of Ireland and maintain the delicate balance of institutions created by the Good Friday agreement. It does so by requiring Northern Ireland to remain aligned with aspects of EU law. We need to make the protocol work, but the arrangement none the less creates some specific challenges for scrutiny and accountability.

As the report notes, the protocol lists more than 300 pieces of EU legislation that apply to Northern Ireland, not just in their present form but as they may be amended in future. In addition, new EU legislation that falls within the scope of the protocol may apply to Northern Ireland too. While the protocol will be subject to a vote of consent in the Northern Ireland Assembly in 2024, the reality is that new EU legislation that applies in Northern Ireland under it will not have been subject to a direct democratic decision-making process involving the UK Government or another representative body of Northern Ireland.

This creates three obvious challenges. The first is a democratic challenge, since no elected representatives of people in Northern Ireland are involved in agreeing the legislation at EU level. Secondly, there is an application challenge: legislation which is not primarily designed with Northern Ireland in mind may have unintended or disproportionate consequences when applied there. Thirdly, there is a divergence challenge, since the dynamic nature of the application of new EU legislation within the scope of the protocol creates the potential for greater divergence between Northern Ireland and the rest of the UK.

These challenges are inherent to the nature of the protocol, but it is right that this House plays a role to help make it work, mitigate any negative consequences and maximise the benefits of this arrangement for people in Northern Ireland. The work of the committee in scrutinising EU legislation applying in Northern Ireland is therefore a vital function.

I will make three points on the committee’s work; the first is on the facilitation of scrutiny. In the unique circumstances of the protocol, it is all the more important that the Government meet their obligations to enable the committee to perform its functions properly. The report is absolutely correct to emphasise that the Government have an obligation to explain the impact of legislation that will apply in Northern Ireland. It is concerning to hear the committee’s characterisation of some of the Government’s Explanatory Memoranda on these pieces of legislation as “frankly poor”. The Government must comply with their undertakings and ensure the proper quality of Explanatory Memoranda.

The report lays out a very reasonable set of requirements the Government should meet when setting out the implications of legislation for Northern Ireland, including the risks of regulatory divergence, the views of the devolved Administrations and the consultations that the Government have undertaken. Here, it is worth referring to the point made by the noble Baroness, Lady Ritchie, about the importance of an audit of EU legislation and of monitoring divergence; the noble Baroness, Lady Suttie, also made this point.

There is, regrettably, a troubling pattern from this Government when it comes to parliamentary oversight and scrutiny. The Government’s retained EU law Bill is an insult to the proper scrutiny function of Parliament. The protocol Bill, with its Henry VIII clauses, is a power grab that gifts Ministers significant and unaccountable powers. It seems that the Government are also failing to provide quality materials to enable the proper scrutiny function of the European Affairs Committee. I urge the Government to take heed of the committee’s concerns in this area.

The second point is the importance of engaging with stakeholders in Northern Ireland. This is a duty that I believe is incumbent not just on the UK Government but particularly on the EU. The more the EU engages with those affected by the new legislative proposals that will apply in Northern Ireland, the better. We have heard in today’s debate some practical proposals for trying to facilitate better engagement from my noble friend Lord Hain, and a number of others. This can help address democratic concerns about the protocol, as well as ensure that Northern Ireland’s unique circumstances are taken into account. Too often, the voices of communities and businesses in Northern Ireland have not been heard sufficiently. I urge the EU to think creatively about how it can best engage with those voices in Northern Ireland. The work of the committee also provides, through its written and oral evidence sessions, an important platform to engage with Northern Ireland’s stakeholders, and that should continue.

Thirdly, I make the wider point that the most effective step that could be taken to promote effective governance and democratic accountability in Northern Ireland would be the restoration of power-sharing, and the return of a functioning Northern Ireland Executive and Assembly. Some 44% of families in Northern Ireland have no savings and it has the worst waiting list figures in the United Kingdom. These problems can be solved only by a functioning government. It is an abject failure that power-sharing has not been restored. It is the job of politicians to solve the problems of residents and voters; it is not the job of voters to solve the problems of politicians.

There is a window of opportunity now to reach a negotiated agreement with the EU that the Government must not squander. We sincerely hope to see a swift and comprehensive negotiated solution. I hope the Minister will be able to update the House on negotiations. If there is a deal that delivers for our national interest and the people of Northern Ireland, we in the Labour Party will support it. I am grateful to the noble Lord, Lord Jay, and his committee for their work; I hope that the important issues raised in this report will receive appropriate consideration from the Government.