Protocol on Ireland/Northern Ireland (EUC Report)

Lord Wood of Anfield Excerpts

Monday 13th September 2021 Grand Committee

[Lord Wood of Anfield (Lab)]

My Lords, as a member of both the former EU Committee of this House and the current European Affairs Committee, I want to start by thanking not just my noble friend Lord Kinnoull, who has led both committees with skilful even-handedness and good humour but, as he did, the staff of both committees. Their professionalism and excellent work are on show in these two reports, particularly over a period as challenging as that experienced since the onset of the pandemic, and testify to the calibre of those on whom we rely so much here in this House.

The core insight of the June 2020 report was simple: that there is a clear contradiction between the protocol’s rule that EU customs legislation applies in its entirety to Northern Ireland, and the Government’s long-standing and continuing claim that the protocol, which they co-authored, would guarantee “unfettered market access” for goods going from Northern Ireland to Great Britain. It is a contradiction between the reality of a signed treaty and the political claims that continue to accompany it. The contradiction is still worth noting, not to re-run the Brexit debate nor to score points, but because only by understanding that it is a contradiction and that trade flows both ways between Northern Ireland and Great Britain cannot remain unaffected or unchanged by adherence to the protocol will we be able to distinguish real, lasting solutions to the current impasse from illusory solutions.

Once we understand the fundamental nature of the protocol in that respect, a few things about the way forward become clear. First, the problems of the moment are not merely differences of interpretation or implementation; they are more fundamental, and the ultimate compromises required on all sides to achieve a durable solution will be correspondingly greater. Secondly, there is no solution to the problem that can be engineered by simply dismantling the protocol. It was an essential pillar of the Brexit agreement for both the EU and the UK sides, in complex ways. Simply scrapping the protocol would have knock-on consequences for Northern Ireland, the UK and the EU, and for stability, democracy, borders and trade, that would make things considerably worse for all rather than better. Thirdly, it becomes clear that the current phase of delicately fudging the protocol with a litany of grace periods subject to shifting deadlines offers short-term respite but cannot provide a way out of the impasse.

The truth is that the multiple problems of the operation of the protocol, which the report of the sub-committee of the noble Lord, Lord Jay, has done such an excellent job of conveying, did not arise out of the blue during the implementation phase; they were baked into the treaty the Government signed. The Government know this to be the case, as do Northern Irish unionists, whose opposition to the Brexit deal was crystal clear from the outset and who now oppose the protocol for the same reasons they opposed it before it came into operation.

The protocol made Brexit technically doable by accepting rules that changed the commercial arrangements between Northern Ireland and Great Britain. That is the nature of the beast to some significant extent, whatever tweaks to the protocol might be achieved in the months or years ahead by the noble Lord, Lord Frost, and his team. I make this point because it is important for a Government demanding changes to the protocol, as our Government have done now for some months, to be candid and transparent about what the true negotiating space is. I am not clear that that is the case at the moment.

Of course, both the EU and the UK Government need to shoulder responsibility for some aspects of the current state we are in. The EU has clearly acted inflexibly in some respects. In particular, as the July 2021 report shows, the supplementary customs declarations required for moving goods from Great Britain to Northern Ireland are not suited to the regional supply chains where the risk of goods moving into the EU single market is low, but the problems of the UK Government’s position are more serious, because they continue publicly to demand “interpretive” changes to the protocol which are in fact substantive alterations to it. Their rhetoric, such as that on unfettered access, continues to fuel unrealistic notions that a revision of the protocol can get rid of all commercial restrictions on trade between Great Britain and Northern Ireland. Yes, more flexibility on the part of the EU is required, but getting rid of contradictory ambitions is a more pressing requirement on the part of the UK Government.

In the short term, I am sure that Members across the House will welcome the idea of grace periods on existing terms of trade being extended to allow more time for discussion on the timetable for introducing the protocol’s provisions. From the standpoint of stability, it is obviously far from optimal to have unilaterally declared grace periods that keep getting extended. However, given the position in which we find ourselves—the DUP withdrawing from North/South Ministerial Council, and the threat possibly to withdraw in the near future from the power-sharing structures altogether —the extension of grace periods as a temporary measure last week by the Minister, the noble Lord, Lord Frost, was a necessary move, and one that looked to be co-ordinated, at least in some tacit way, with the European Union.

However, extending grace periods on SPS rules, agri-food certification, customs declaration arrangements and so on is not a long-term way out of the current mess. Indeed, while, in the short term, the greater risk is that differences over the protocol threaten peace and devolved power-sharing arrangements inside Northern Ireland, the longer-term danger is that the fudges required to delay the protocol and avert these threats never get unblocked—a situation in which the temporary fixes become permanent simply because the politics do not exist to go any further. It is a world in which grace periods, extended serially, would become the norm—governance by grace periods, if you like.

There may be a temptation for many to think that this would not be such a bad place for Northern Ireland to be in eventually; after all, the world is full of impasses with interim arrangements whose fundamentals never get sorted, because political moves beyond the interim are unmanageable. It would be a mistake, however, to contemplate this as a durable future state of affairs for Northern Ireland, in part because the UK signed an international treaty, of which the protocol was a key aspect. Avoiding its implementation as part of a long-term political strategy would do immense damage to the UK internationally. More importantly, it would be a very bad outcome for Northern Ireland. In the medium term, investment in Northern Ireland requires the economic, institutional and political certainty that continuously extended short-term grace periods just cannot provide. It is also crucial for Northern Ireland, especially given its history and the intricate web of bespoke institutions, rules and understandings on which the Belfast agreement was built, that the arrangements on which economic and social life depend continue to enjoy basic consent. That is not the case at the moment, but it has to be an ambition if the protocol is to enjoy long-term confidence.

We already know something about what the solution to the protocol might look like: it will be messy, complex and please no purist on any side. What we do not know is whether those party to bringing this solution about will have the political courage to make the compromises required. However, we do know something about the political conditions that will be conducive to a successful outcome. They will require the Government to reject the dangerous idea, suggested by some on their Back Benches, that the protocol can be abandoned without thereby creating serious consequences for stability, democracy and prosperity in Northern Ireland. They will require those in Northern Ireland who are passionate about the union to work within, rather than outside, the multiple structures established since the Belfast agreement. They will also require the EU to seek resolution through long, patient negotiation rather than through taking legal action. I hope we can all agree that, whatever our party and whatever our view on Brexit, we will do whatever we can to make all those conditions come to pass.