Protocol on Ireland/Northern Ireland (EUC Report)

Lord Thomas of Gresford Excerpts

Monday 13th September 2021 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to serve on the Northern Ireland sub-committee, under the excellent chairmanship of the noble Lord, Lord Jay of Ewelme. I pay particular tribute to Stuart Stoner for his contribution, and to Breda Twomey, who was in charge of the administration. The noble Lord, Lord Jay, achieved something that is quite surprising: agreement, by all members of the committee, to this interim report. As the noble Lords, Lord Caine and Lord Empey, both pointed out, a diverse bunch of people were on that committee and to get them to agree an interim report was quite something.

But things have moved on. If I may coin a phrase, we were where we were. On the day we published our report, 21 July, the Command Paper that has been referred to was published. Paragraphs 45 and 70 called for UK-EU negotiations so substantive as to create a new settlement to supersede parts of the protocol. The response of the EU was:

“we will not agree to a renegotiation of the protocol.”

Two days later, the Minister formally requested a standstill of current arrangements in accordance with paragraph 77 of the Command Paper and a freezing of the EU’s existing legal actions. While not obliged to do so, the Commission halted its proceedings arising out of the British unilateral action last March to extend the grace periods.

Then we had the ministerial Statement on 6 September, which was another unilateral declaration to continue the grace periods and easements currently in force to which the European Commission had not assented. The Commission replied the same day to the effect that both sides were legally bound by an international agreement to fulfil their obligations under it, emphasising that it would not agree to renegotiation. At the moment we are in a position of stalemate. The European Commission said:

“Our focus remains on identifying long-term, flexible and practical solutions to address issues related to the practical implementation of the Protocol”.


To my mind, that sounds an admirable aim. The question is: will it happen? The Commission also said:

“Our approach to the Protocol is based on the achievement of stability, certainty and predictability in line with the objectives of the Good Friday (Belfast) Agreement and in order to protect the Single Market.”


That is a statement of intent which, again, seems perfectly reasonable and desirable.

The next thing to happen was the speech of Sir Jeffrey Donaldson, which introduced the fantasy world in which he threatened to break up the power-sharing Government in Northern Ireland if the protocol was not abandoned. The Belfast Telegraph described it in terms such that Boris’s bridge to Northern Ireland would be built before that happens. The Minister said in his speech to the British-Irish Parliamentary Association on 4 September that his purpose is not to scrap the protocol but to rebalance it. Does he support the new stance taken by Sir Jeffrey Donaldson? I am sure he will answer that question in his reply. If he is not prepared to do what Sir Jeffrey Donaldson suggests—to abandon the protocol—why is he not prepared to use the dispute mechanisms he agreed to in the protocol? Why has he proceeded by unilateral diktat?

This was anticipated many years ago. The noble Baroness, Lady Kennedy of the Shaws, said in 2017, when she was a member of the European Union Committee:

“Going forward, the Government will have to ensure that it can agree a clear, certain and robust enforcement mechanism to ensure that any rights and obligations under the Withdrawal Agreement (and subsequent partnership arrangements with the EU) can be upheld in the event of a dispute.”


The noble Lord, Lord Caine, told us just now that the protocol is not sustainable. But is it beyond resolution? There are problems and one of the concerns I have voiced in the committee has been about the democratic deficit—which is an important issue of principle that has to be resolved.

Professor Katy Hayward of Queen’s University Belfast, in an article for UK in a Changing Europe in July, said:

“Such matters can be resolved largely through the work of the Specialised Committee, whose continuing technical talks are leading to some legislative change in the EU to allow flexibilities for Northern Ireland. Or, if more substantial, the Joint Committee could adopt a decision to amend the Withdrawal Agreement if ‘necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed’ … The UK government is seeking fundamental changes of the type and scale it thinks requires renegotiation, but fails here to present evidence as to what cannot be resolved through the existing means.”


Why did the Minister agree to the European Court of Justice being the final arbiter? Why did he concede that final jurisdiction to Michel Barnier of all people, who revealed last week that he believes that the legal sovereignty of France is threatened by the rulings of that court? Perhaps Monsieur Barnier is trying to tune in to the populist urges of his right-wing party in his bid to be its leader. The impression is strongly given in this country—the Minister can perhaps deal with this—that he cannot now stomach the role he agreed for the European court and therefore now avoids, shies away from, the dispute mechanisms he agreed to in the withdrawal agreement.

Analysis from the Institute for Government shows that between 2003 and 2016, compared with other EU member states, the UK resolved its cases in the ECJ early, ended up in court less often than most and won more often than most. This was due to the quality of British lawyers—well, I would say that wouldn’t I?—and their skill in presenting and arguing their case. We have nothing to fear from that court. Why replace it with a set of unknown, ad hoc international arbitrators as the final decision-makers?

We on these Benches did not seek to leave the European Union, and I suggested at the time that it would lead to the break-up of the United Kingdom, a threat which has not gone away as the cold light of day falls upon the promises that were made, but my approach within the committee, as committee members will know, has been to be more optimistic for Northern Ireland. I see that there is a prize to be grasped: the prize of prosperity due to the unique circumstances of its access to both the single European market and the UK, a point strongly made by my noble friend Lady Suttie and recently by the noble Lord, Lord Kerr. I was heartened to find that my perception was strengthened by our witnesses, who spoke of the increased trade with the Republic of Ireland and the many business inquiries from all over the world. The noble Lord, Lord Empey, referred to the constitutional carbuncle that will take place in 2024 when a decision is to be made about the continuation of the protocol. That puts considerable pressure on the political parties that will be fighting next May’s elections.

The possibility of prosperity is the future which Sir Jeffrey Donaldson should grasp. That is what this Government at Westminster should be working for: to sort out and minimise the practical problems by negotiation within the terms of the dispute mechanism. That is the way we will find certainty and ultimately stability for the whole of Northern Ireland and its people.