Protocol on Ireland/Northern Ireland

Lord Thomas of Gresford Excerpts

Thursday 3rd March 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I am a member of the sub-committee. We requested some assistance, through opinion polls, as to the current state of play—with all the limitations that we know about opinion polls. The February 2022 survey of Queen’s University, Belfast disclosed that 50% agree to the proposition that the protocol is on balance a good thing for Northern Ireland. The LucidTalk NI tracker poll carried out in January found that 36% thought the protocol was wrong and should be scrapped, 44% support the protocol but believe it should be reformed or adjusted, and 18% support and have no problems with it. The general picture is that the protocol is supported by perhaps two-thirds of the population, although a large section of those think it should be at least revised.

The problem is that the UK Government agreed to a solution for Northern Ireland which has two fundamental flaws. First, they agreed that the European Union could make laws directly affecting Northern Ireland but without a voice for its people. The second flaw is that they gave to the European Court of Justice, on which there is no longer even a UK representative, jurisdiction to pass judgment in infringement proceedings, or JRs, in certain areas which affect Northern Irish businesses and people, under paragraph 4 of Article 12.

The simplistic approach to these problems is to call for the scrapping of the protocol altogether but Article 16 permits unilateral safeguarding measures only if the protocol leads to

“serious economic, societal or environmental difficulties that are liable to persist”

or to “diversion of trade”. However, any action taken must be temporary—

“restricted with regard to their scope and duration”—

and limited to involving only the issues explicitly identified. Article 16 is not intended to allow either party to suspend provisions of the protocol permanently or in their entirety. I was surprised that the noble Lord, Lord Frost, suggested that it could be used this afternoon.

Unless we break the terms of the treaty, we have to swallow our pride, acknowledge our mistakes and seek solutions with our EU counterparts. We have to address the democratic deficit and seek a voice in the making of EU legislation, and while allowing the European Court its fiercely protected right to be the sole arbiter of European law, that must be indirect: we should negotiate to use the arbitration mechanisms provided for in Articles 167 to 181 of the withdrawal agreement. The essential thing is that the protocol must be made to work.