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

– in the House of Lords at 10:06 am on 20 January 2023.

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Lord Jay of Ewelme:

Moved by Lord Jay of Ewelme

That this House takes note of the Report from the European Affairs Committee Report from the Sub-Committee on the Protocol on Ireland/Northern Ireland: Scrutiny of EU legislative proposals within the scope of the Protocol on Ireland/Northern Ireland (5th Report, Session 2021-22, HL Paper 177).

Photo of Lord Jay of Ewelme Lord Jay of Ewelme Chair, Windsor Framework Sub-Committee, Chair, Windsor Framework Sub-Committee

My Lords, like others in this House, I spent many happy hours discussing the scrutiny of European Union documents as a member of the old European Union committees of the House before we left the European Union but, when we talk about the scrutiny of EU legislation applying now to Northern Ireland, we are talking about something very different. We are talking of the scrutiny by Parliament of EU legislative proposals which now or in the future will apply to Northern Ireland because, under the terms of the withdrawal agreement and the Northern Ireland protocol, Northern Ireland remains in the EU single market for goods; and we are talking about EU legislative proposals over which neither the UK nor the Northern Ireland Administration has had any proper say. There is a real democratic deficit here, and this concerns all members of the Sub-Committee on the Protocol on Ireland/Northern Ireland, which I have the honour to chair. Many members of that committee are speaking in today’s debate, no matter what their views on the protocol itself. I thank the staff of the committee, including the staff of the Committees Scrutiny Unit, for the invaluable help and advice that they have given us.

Under the protocol as it currently operates, more than 300 pieces of EU legislation set out in its annexes apply to Northern Ireland now and will continue to do so as they are amended or replaced. In the view of the committee, that legislation must be subject to detailed parliamentary scrutiny. Why? It is because, without that, important areas of law applying to Northern Ireland would go unscrutinised and possibly even unnoticed by Parliament. Such scrutiny therefore is, and will continue to be, a key priority of the committee. The report before the House this morning sets out the committee’s approach to this scrutiny work and its key findings and observations so far.

The report notes that the volume of documents requiring scrutiny has been significantly higher than anticipated before the protocol came into force. During the first year of its operation up to March 2022, the committee wrote more than 90 letters to government Ministers on more than 40 EU legislative proposals applying to Northern Ireland under the protocol. In the current parliamentary Session, the committee has so far written a further 50 letters on 27 legislative proposals. As outlined at paragraph 21 of our report, these cover a wide range of policy areas and are of considerable technical complexity, engaging with many government departments.

In our report, we note that the Government in turn have an obligation to facilitate such scrutiny. We welcome their commitment to do so through the production of explanatory memoranda summarising EU legislation applying to Northern Ireland, including, when requested by the committee, on EU delegated and implementing Acts, and by providing prompt responses to follow-up correspondence from the committee.

However, the report stresses that the Government need to go further. We argue that any entirely new EU legislation within the scope of the protocol of which the EU has informed the UK should automatically be deposited in Parliament for scrutiny at that stage; that the Government should deposit draft EU proposals that are relevant to the provisions of Article 2 of the protocol on rights and individuals; that the Government must also ensure that any other EU legislative proposals with significant implications for Northern Ireland in the context of the protocol are promptly deposited in Parliament; and that the Government need to establish formal mechanisms for prompt communication to Parliament of information received from the UK in the UK-EU joint consultative working group on planned or adopted EU legislation falling within the scope of the protocol.

In their response to our report, which I welcome, the Government went part-way to meeting those points, but there is more work to be done to ensure that their facilitation of parliamentary scrutiny is properly comprehensive. That is the responsibility of all government departments, whose contributions so far have been—how shall I put it?—varied. Some are good, some less so, but, as I mentioned recently to the noble Lord, Lord Benyon, I commend Defra on the quality of its work.

What update can the Minister provide on efforts to enhance the Government’s facilitation of parliamentary scrutiny of EU legislation applying to Northern Ireland under the protocol? In particular, what is his response to the committee’s calls for the Government to maintain and publish an audit or log of all EU legislation applying to Northern Ireland under the protocol that gives rise to issues of regulatory divergence between Northern Ireland and Great Britain?

I am of course conscious that the Government are in the midst of talks with the EU about the protocol, and conscious too that the Northern Ireland Protocol Bill remains before the House. However, we stress that the Government continue to have an obligation to set out to Parliament the full implications of EU legislation applying now to Northern Ireland under the protocol, and that they must set out as a minimum the views on each proposal expressed by the Northern Ireland Executive, when they are functioning, as well as the other devolved Administrations; the Government’s assessment of the merits or otherwise of the proposal; whether the proposal will lead to regulatory divergence between Great Britain and Northern Ireland, and the practical implications of that; what steps the Government are taking to address such regulatory divergence, including considering the case for introducing equivalent measures in England or Great Britain, according to the extent of the Government’s powers of competence in each case; the impact, if any, of the proposals for Northern Ireland’s participation in the UK’s free trade agreements; the relevance and impact of the proposals for Northern Ireland’s participation in UK common frameworks, and how common frameworks intersect with the protocol; whether and how EU legislation will be implemented in domestic law; and what consultation has taken place with business representatives and other key stakeholders on the impact of EU legislation, and whether a regulatory impact assessment has been undertaken. Will the Minister tell us what steps are being taken to ensure that this information, as a minimum, is set out in future in government Explanatory Memoranda?

As well as liaising with the Government in relation to this work, the committee attaches high priority to engagement with other committees of this House and of the House of Commons, with the Northern Ireland Assembly and the Northern Ireland Executive, and with key stakeholders who stand to be affected by EU legislation applying to Northern Ireland. Given the Northern Ireland Assembly’s democratic mandate to represent the people of Northern Ireland, the committee’s engagement with it is particularly important, and I express the hope that difficulties over the protocol can be resolved so that the Assembly and the Executive are once more able to function and to offer their own unique perspectives on the implications of these issues for the people and communities of Northern Ireland that they represent.

A key aspect of that engagement is of course with the EU itself. As I mentioned earlier, the committee has previously drawn attention to the democratic deficit under the protocol as negotiated, agreed and ratified by the UK and the EU, in that significant aspects of EU law, with wide-ranging political and economic implications, apply to Northern Ireland subject to neither the UK Government’s participation in the EU institutions nor to consent from parliamentarians at either Westminster or Stormont. The EU needs to do more to enhance transparency around the application of EU law to Northern Ireland; to take account of the impact of EU law on Northern Ireland’s particular circumstances; and to engage with Northern Ireland stakeholders at an early stage, to give them a voice on the application and implications of such legislation.

In our report, we concluded that the EU should explicitly state whether a proposed EU legal Act engages the UK’s obligations under the protocol; the basis on which such legislation should apply to Northern Ireland; and how the EU has taken into account Northern Ireland’s particular circumstances in the application of the legislation in question. I conclude, as does our report, by stating:

“In the context of the ongoing discussions between the UK and the EU on the future of the Protocol, all sides have a continuing obligation to ensure that the operation of the Protocol … takes into account the delicate balance between North-South and East-West relations as provided for under the Belfast/Good Friday Agreement, and to demonstrate how it is compliant with that Agreement in all its Strands.”

I beg to move.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative 10:17, 20 January 2023

My Lords, I speak as a member of the main EU Select Committee. I warmly welcome the sub-committee’s report and I thank my fellow member the noble Lord, Lord Jay, and his colleagues for their hard work and the detailed and constructive recommendations in the report.

The Northern Ireland protocol has produced an unprecedented awkward situation whereby the laws of a foreign jurisdiction are to apply in certain respects to part of the United Kingdom—that is, Northern Ireland. That will include 300 laws, new laws and dynamic alignment whereby existing laws, when they are changed, will cause Northern Ireland to change its laws too. It is therefore extremely important, if we are to have EU law in part of the UK, that there be proper parliamentary scrutiny by the House of Commons, by the Northern Ireland Assembly and of course by this House. We cannot alter EU law but the scrutiny, as the noble Lord has said, enables us to understand the implications and bring what influence we can to bear. It is also important that EU legislators are aware of the specific circumstances of Northern Ireland and take them into account.

The committee has produced a plethora of practical and constructive recommendations to improve scrutiny at all stages, including pre-legislative consultation. I warmly welcome them but, call it what you like—accountability, transparency, glasnost—it can take one only so far. There remains the fundamental problem, as the Government’s reply says, of the democratic deficit. It used that phrase, as did the noble Lord, Lord Jay. This situation cannot be resolved simply by scrutiny.

The Government make an important point in paragraph 30 of their reply to the committee when they say that

“the imposition of EU law … was not a necessary consequence of”

Brexit, any more than Brexit

“required dynamic alignment, or the ‘backstop’. The imposition of EU law was a consequence of the EU’s unwillingness to accept other solutions … We need to see much more ambition from the EU to engage on the changes necessary to give Northern Ireland institutions … a meaningful role in shaping the rules applicable in Northern Ireland.”

That is of course the problem at which the Government’s stalled protocol Bill was partly aimed. These are very important points in the Government’s reply to the committee because they are frank, and they are saying that it is not just the sometimes-alleged intransigence of unionist politicians but also the inflexibility of the EU that has been holding things up.

The reply does not mention the issue of cross-community consent, which would obviously be outside the terms of reference of the committee, but that consent has been an important part of democracy in Northern Ireland ever since the Good Friday agreement. Its absence might well be regarded by unionists as a most important part of the democratic deficit. It would be good to know from the Minister today what more the Government think can be done to fix—if fix is the right word, or if it is possible—the democratic deficit. Is this just some minor constitutional outrage that eventually we have to learn to live with? Do the Government see the dual regulatory regime, as has been hinted, as helping to solve this problem? How would it do that, when for some people that would be opting out of the direct imposition of EU law? Is that practical and would it really be acceptable to the EU?

Mr Varadkar said recently that perhaps the EU’s interpretation of the protocol had been too strict. That sounded as though the EU might be prepared to be more flexible but, almost immediately, his words were qualified by the Commission. We read about the progress that has been made with proposals for red and green channels, potentially minimising checks on goods going from GB to Northern Ireland. This is very welcome and might help to stop the artificial diversion of trade, which weakens the economic link between GB and Northern Ireland and undoubtedly alarms unionists, but it would still leave the political problem.

We are all anxious to see power-sharing back—to have the Assembly and Executive back. It would be good, if possible, to welcome President Biden to the Good Friday anniversary. I recognise that the Government have a difficult job but, as things stand, it is very difficult to see where the landing zone is going to be.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 10:21, 20 January 2023

My Lords, I am delighted to follow the noble Lord, Lord Lamont, and to acknowledge the good work and stewardship of our chair, the noble Lord, Lord Jay, and our staff. Our chair has been able to secure consent, agreement and compromise among the many opinions in our committee, based on the evidence presented to us in producing all of our reports so far. This report, as the noble Lord, Lord Jay, stated, deals with our examination of European legislation which deals with Northern Ireland. Our report stated:

“In view of the socio-economic and political implications of the Protocol for Northern Ireland, in particular in the context of its relationship with the rest of the UK, EU legislation applying to Northern Ireland must be subject to detailed parliamentary scrutiny.”

This will happen in our committee on an ongoing basis, and is the very essence of what our report under discussion is about.

The noble Lord, Lord Jay, rightly referred to the issue of democratic deficit, which has been continually raised by many people who have given evidence to the committee. There is no doubt that that democratic deficit has to be addressed and resolved through the ongoing negotiations—and, on their completion, I hope there is a formula to deal with that issue.

There is one matter that we raised in our committee’s report and which we subsequently wrote to the Foreign Secretary about, on 6 December: is an audit kept of such legislation on an ongoing basis? I recall that the Government demurred from providing us with a detailed answer on that specific point. We requested full disclosure by government and a detailed Explanatory Memorandum on all aspects. In our letter of 6 December, on the foot of the Government’s response to our report, we asked specific questions, and I hope that the Minister will be able to provide answers.

On the issue of regulatory divergence, does the Foreign Office have overall responsibility for monitoring such divergence? How does the Foreign Office, with the Cabinet Office and the NIO, as well as other government departments and the Northern Ireland Executive, monitor and log such divergence, and above all its impact? Do the Government have a dedicated divergence unit and, if so, where is it based and what are its functions? It is important that the Minister provides us with answers today, while ensuring that he has a little word in the ear of the Foreign Secretary, so that he will be able to come and give evidence to our committee in the short term.

Undoubtedly, we have to set the report in the context of the overall UK/EU negotiations, which are ongoing. I hope that there is a negotiated settlement that will make the protocol Bill redundant. In my view, it should never have been brought forward for debate, as the clauses remitting the cancellation of a large part of the protocol were seen by many as provocative and belligerent. The only way to deal with the issues, including those raised by the pharmaceutical industry on medicines two days ago at our committee, is negotiations. As the pharmaceutical industry said to us, those issues emerged from Brexit but are logistical and technical, so they require a detailed, negotiated outcome.

I hope there is a restoration of the political institutions in Northern Ireland, because the people are crying out for that. They are crying out for help on a wide range of issues and can no longer wait; they want that restoration to take place quickly. I fully support our report and look forward to our further discussions on many other issues over the next few months.

Photo of Baroness Suttie Baroness Suttie Liberal Democrat Lords Spokesperson (Northern Ireland) 10:26, 20 January 2023

My Lords, it is a great pleasure to follow the noble Baroness, Lady Ritchie, and I agree with so much of what she has said this morning. I too congratulate the noble Lord, Lord Jay, on his skilful and diplomatic chairing of the Northern Ireland protocol sub-committee. As the noble Baroness, Lady Ritchie, said, it is a committee with a wide range of views, and it is testament to the committee and its staff that, once again, it has produced such an important report of great substance. The sub-committee should also be congratulated, I believe, on carrying out its scrutiny function so effectively. It would be very welcome if the Government would now engage more proactively, and across all departments, as the noble Lord, Lord Jay, said, to ensure that the effective processes of scrutiny can be introduced across Whitehall.

The Northern Ireland protocol is far from perfect and, to use the well-worn phrase, many of us speaking in the debate today would not have wanted to start from here. But we are where we are and, for the sake of businesses in Northern Ireland, it is vital that we now make it work. When I was reading this excellent report and the House of Lords briefing note ahead of the debate, it was hard not to feel a sense of frustration, and even anger, on behalf of the people of Northern Ireland that so much time has been wasted in sorting all of this out. It is now nearly seven years since the EU referendum and over three years since the 2019 election, which was fought on the basis of getting Brexit done. These issues should have been resolved a long time ago. I appreciate that there is now a subtle change of mood music from the Government and a more business-like attitude to finally getting this sorted.

It is also welcome, as the noble Lord, Lord Lamont, said, that on becoming Taoiseach once again Leo Varadkar acknowledged a week ago that the implementation of the protocol

“was too strict and too rigid and that created real difficulties”.

This indication of greater flexibility is very much to be welcomed. But Brexit was a British decision, so we really should not expect our EU partners or the Government in Dublin to have to sort it out.

In my remaining remarks, I will raise a number of specific points, some of which have already been raised by the noble Baroness, Lady Ritchie, on the scrutiny of EU regulations by this Parliament. The first is on the Commission’s non-paper on engagement with Northern Ireland stakeholders and authorities. That paper contains several proposals for initiating a more structured approach for dialogue. Can the Minister say whether the Government are looking at some of these proposals with a view to implementing them?

The Minister will know, as the noble Lord, Lord Jay, has already said, that the sub-committee wrote to the Foreign Secretary on 6 December last year about the proposal of creating a log of regulatory divergence. That seemed to me like a very realistic and sensible proposal. Can the Minister say in his concluding remarks whether this is something they are now actively considering?

I worked for 10 years as a policy adviser and then press secretary in the European Parliament. For three of those years, I worked as an adviser on the research and energy committee. I know just how much work was done influencing the course of legislation at the drafting stage. Information and access were key elements of this. Can the Minister say what thought has been given to assisting Northern Ireland businesses at a much earlier stage of the EU legislative process, especially given that Northern Ireland no longer has MEPs to be involved in these very important early stages of drafting legislation?

In conclusion, as the noble Baroness, Lady Ritchie, has said, I feel that the continuing lack of a Northern Ireland Executive and Assembly is a tragedy at this time. A strong, functioning Assembly and Executive could have done so much to provide necessary scrutiny and oversight of EU legislation. As we approach the 25th anniversary of the Belfast/Good Friday agreement, I hope we can finally move on and make genuine progress.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 10:31, 20 January 2023

My Lords, the valuable report we are debating, remarkably well presented by my noble friend Lord Jay of Ewelme, lifts the lid on a somewhat overlooked aspect of the Northern Ireland protocol and the withdrawal agreement with the EU: the scrutiny of single market legislation, which necessarily applies to Northern Ireland under the ratified terms of those agreements, but over which neither our Parliament nor Northern Ireland has a formal voice let alone a vote.

I speak as a member of your Lordships’ European Affairs Committee. This report was also submitted under its name, although you would not guess that from the Order Paper. I speak on my own personal behalf, and not that of the committee. Views expressed and questions posed are my own and not those of the committee.

It is surely a mistake to overlook this aspect of these agreements, which amounts to acceptance of what is often known in the jargon as “dynamic alignment” with single market legislation as it emerges down the years. That is a fact of life, whether we like it or not. We all—the United Kingdom, Northern Ireland and the EU—need to come to terms with it and mitigate its implications as best we can so that the democratic deficit does not become and ever deepening crevasse. Why so? Because it is very clear, from any reading of the withdrawal agreement and of the protocol, that that was what we signed up to and ratified in January 2020 and which is thus part of that rules-based international system which our Government purport to champion. Not even the Johnson and Frost negotiating duo have disputed this. It was not due to oversight, misunderstanding, draconian implementation by the EU, nor misrepresentation.

Moreover, despite the assertions of some, it is an integral part of every agreement with every third country which the EU has entered into which grants single market status to that state or to part of it—think of Norway, Iceland or Liechtenstein, or even Switzerland with its bundle of agreements. We should not delude ourselves into thinking that it ever was, is now, or will be somehow negotiable, nor that Northern Ireland has been uniquely picked upon. My first question to the Minister is: do the Government share that analysis?

The issue then is what can be done to mitigate the democratic deficit. Quite a lot is in our own hands and could and should be dealt with straightaway. First, we could reverse our singularly unwise decision to block the Commission’s intention to open in Belfast a subordinate office to its London office. This sub-office would provide early-stage access to emerging EU single market legislation to the whole of Northern Ireland’s civil society—the Executive, Assembly, parties, trade associations, NGOs and many others—and the opportunity to get through to Brussels the implications of its proposals for Northern Ireland. This is surely better than having to rely on periodic visits by EU officials based in Brussels or London.

Secondly, and in addition, there could be a clearly defined, dedicated section of the UK’s mission in Brussels. Its job would be to ensure that the EU’s institutions—not just the Commission but also the Council and the Parliament—fully understand the implications of emerging single market legislation for Northern Ireland and, so far as possible, take them on board. My second question to the Minister is: will the Government take those two steps which are entirely under their control? Beyond those steps, there are more complex issues, which may need to be taken up in the review of the protocol in a couple of years’ time, given the difficulty of raising them during the present fraught process of negotiations over the protocol—although all would much better be addressed sooner than that.

There need to be processes by which the views of the Northern Ireland body politic—the Executive, Assembly and parties—have some kind of voice to and links with all parts of the EU institutions with actions affecting Northern Ireland’s involvement in the single market. This could include the UK/EU parliamentary grouping, the European Parliament more widely, the Council and the Commission. It would go well beyond, in intensity and frequency of meeting, the operation of the TCA machinery. Our aim should be to achieve for Northern Ireland a voice, if not a vote. My third question is: could the Minister, when he replies to this debate, say whether the Government’s thinking is moving into the terrain I have sketched out?

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP 10:35, 20 January 2023

My Lords, it is an honour to be a member of the Sub-Committee on the Protocol on Ireland/Northern Ireland under the chairmanship of the noble Lord, Lord Jay. I endorse everything that he has said and the report, and his calls for better scrutiny of EU regulations as they apply to Northern Ireland.

I pay tribute also to the staff of our committee who labour long and hard to analyse all these EU regulations and to formulate letters, and so on, to Ministers. We are indebted to them because I think no other body is doing this type of work anywhere in the United Kingdom in terms of EU regulation. Even when the Assembly in Northern Ireland met, unfortunately, regrettably—quite amazingly, in my view—it did not do this type of work.

We are dealing with a very serious issue: the scrutiny of over 300 areas of law which apply dynamically and directly to Northern Ireland, formulated and implemented by a foreign political entity, drawn up in its interests—not in the interests of the people of Northern Ireland—and imposed directly without any say or vote of any parliamentarian or elected representative of the people of Northern Ireland in Belfast or London.

These pieces of legislation cover a vast range of subjects—manufactured goods, agri-foods and so on. As we delve into them in our committee, it is very clear that many of these regulations will have long, far-reaching, fundamental and significant effects in terms of the divergence of law between Northern Ireland and the rest of the United Kingdom. Northern Ireland does more trade with the rest of the United Kingdom than with the Irish Republic, the rest of the EU and the rest of the world put together. It is absolutely vital that our economy is aligned with the rest of the United Kingdom. The protocol disrupts and ruptures that.

I understand that the checks we hear a lot about—the red and green channels—are currently the subject of discussion, though no one seems to be able to put any information into the public domain on where these talks are at. I ask the Minister, when he winds up, to give us an update as to what stage these talks are at. Are they at the technical stage? Are we engaged in political talks? Has the EU begun to address the issues the Government have raised in the Northern Ireland Protocol Bill and its explanatory documents? These are necessary and to be dealt with if we are going to get the Northern Ireland Assembly back.

The checks are a symptom of the fundamental problem. The problem is that Northern Ireland is subject to a different regime in a vast range of areas over which the Northern Ireland Assembly, or this House, should have the ultimate say. Until that fundamental problem is addressed, we will not see the sort of progress we need to see to restore the Assembly, because you are asking unionist Ministers in Northern Ireland to implement a regime which is detrimental economically to Northern Ireland and constitutionally to its future as part of the United Kingdom. Unionist Ministers, and certainly those in our party, will not do that. I urge the Government to get on and deal with this as a matter of urgency.

In particular, I draw your Lordships’ attention to paragraph 88 of the report, which says that we have a “democratic deficit”. I would call it a democratic denial, because it is not just a deficit: there is no democracy in this area of laws that apply directly to Northern Ireland under the protocol. Paragraph 88 says:

“While steps to ensure parliamentary scrutiny of such legislation and to enhance Northern Ireland’s voice and influence”— we have heard about this—

“in relation to their application are necessary, they are not themselves sufficient to resolve the issues to which the democratic deficit gives rise.”

This is absolutely correct. There is no point comparing this to Norway, because Norway has some final say on the implementation of EU rules, which apply to the whole of Norway. Our country, the United Kingdom, is now divided: this legislature deals with laws in Great Britain but the EU imposes laws on Northern Ireland. That cannot stand. I urge the Minister to tell his colleagues who are leading the negotiations to deal with the fundamental issues; we can then make progress towards the restoration of devolution.

Photo of Lord Davies of Gower Lord Davies of Gower Lord in Waiting (HM Household) (Whip)

My Lords, we have been quite generous with the time so far. I remind noble Lords that the advisory speaking time is four minutes.

Photo of Lord Godson Lord Godson Conservative 10:41, 20 January 2023

My Lords, I take great pleasure in following the noble Lord, Lord Dodds, and I share in the congratulations to the noble Lord, Lord Jay, on his stewardship of the committee and to all of the committee staff. There is great consensus on that matter, if nothing else, in this House and in our committee. I congratulate him and all others associated with that.

In the first year, the committee has scrutinised or taken note of around 74 pieces of EU legislation covered by the protocol. That is 10 times more than the original estimate, suggesting that the democratic deficit is wider, and the divergence between the regulation of goods in Northern Ireland and in Great Britain is likely to be greater, than anticipated when the protocol was originally agreed. This will be of concern to this House, to the people of Northern Ireland and to everyone across these islands and beyond.

It is clear from the volume of material passing through our committee, and from the variability of material that we see from the Government, that engagement with Brussels needs now to be enhanced. The protocol, the withdrawal agreement and the trade and co-operation agreement, as well as the other EU-UK agreements, joint policies and ongoing co-operation, mean that our understanding of the EU’s thinking and planning, and our knowledge of its activities, need to be far better than when we were members of it.

We need to identify the legislative changes and policies that will or might come under the protocol earlier than we are currently doing. We also need to discover and understand the changes in the regulation of the EU’s single market and trade policy as early as possible. More broadly, we need to be much better tuned to the development of the EU’s justice, home affairs and human rights policy, as well as its common foreign and security policy and the recent moves to transform its state aid and industrial policy. In short, we perhaps need to look to the model of the Irish Republic, obviously a smaller entity than the United Kingdom, which has been very successfully able to track and influence UK government policy through the years. We now need to be able to perform that task towards the EU, the larger entity vis-à-vis ourselves, with the same rigour with which the Irish state has performed its core functions in its own national interest.

Our engagement with the European Parliament will need to be far better, far more technical and more consistent. This is particularly true for the protocol, but the lessons have much wider application. On balance, our footprint in Brussels should increase, not decrease, as we seek to engage and understand and, in so doing, better manage our relationship with our largest trading partner. We made great errors in our negotiation on the withdrawal agreement because, frankly, we were not on top of our game and too little expertise was diffused across Whitehall. We have learned much since, but those lessons need to be embedded. We cannot afford to make similar mistakes again.

On our legislative scrutiny, it occurs to me that, in due course, there might be merit in a working relationship under the British-Irish Council, which my late friend Lord Trimble did so much to place at the heart of strand 3 of the Belfast/Good Friday agreement in 1998, when many thought that it was a slightly quixotic enthusiasm of his, although, in retrospect, it has turned out to be of the greatest significance in very different and changed circumstances. The British-Irish Council has seen too little activity and has too often been too easily dismissed during the negotiations over the protocol and even, at times, in this House.

In our scrutiny of EU legislation affecting the protocol, there would be real benefit now in co-operative work with the Northern Ireland Assembly, this House and the other place. This would help to address, in part, the democratic deficit that so many from across many different sides of the divide here identified, and it would bring together local expertise with the resources of this House and our expertise in, and experience of, scrutiny and engagement with Whitehall. The Belfast/Good Friday agreement specifically promotes interparliamentary links and co-operation under the British-Irish Council in strand 3. We should pay attention to how the institutions of the Belfast agreement can help us to address some of the challenges that we face. We must protect that agreement, and it can help to protect our national interests in the same way.

Photo of Lord Hain Lord Hain Labour 10:46, 20 January 2023

My Lords, I too thank the noble Lord, Lord Jay, for his astute chairing, and our clerk, Stuart Stoner, and his expert team for the brilliant job that they do. But, even with such expert scrutiny, there is a loss of democratic accountability—the “democratic deficit”—affecting Northern Ireland following Brexit. Surely the devolved institutions in Northern Ireland should have a much more direct role in the scrutiny of the EU rules that apply to them.

Boris Johnson and the noble Lord, Lord Frost, endorsed by Rishi Sunak, negotiated a deal making Northern Ireland an EU rule-taker, rather than an EU rule-maker, as it was before Brexit. Like Northern Ireland, Norway is in the single market but not in the EU—yet Norwegian Ministers and parliamentarians are able to scrutinise and achieve amendments to all draft EU proposals affecting Norwegians. These consultative rights for EEA members are important to overcome what would otherwise be their own democratic deficit over single market legislation. Norwegian Ministers say that this works well, so why not give similar oversight of the implementation of the protocol directly to the democratic institutions in Northern Ireland? But this is not only a matter for the European Union. Obviously, Norway is a sovereign state, and addressing this Brexit democratic deficit will require the UK Government to allow something different for Northern Ireland, compared with the rest of the UK.

The UK-EU Joint Consultative Working Group—JCWG—which meets monthly, is where the European Commission informs the UK about

“planned Union acts within the scope of this Protocol” under Article 15. This is a point at which potential difficulties arising for Northern Ireland can be identified and accommodated in the EU’s final decisions. The UK Government should therefore establish formal structures to ensure that the views that they proffer through the JCWG take full account of the views of Northern Ireland Ministers, MLAs, officials and stakeholders. Preferably, Northern Ireland representatives should have direct consultative rights within the JCWG.

Meetings of the joint committee have already seen the First Minister and Deputy First Minister, or their nominees, invited to participate in the UK delegation where the joint committee discussed the protocol. But there is currently no formal mechanism for representation from the devolved Governments in the UK to participate fully in the UK delegation to meetings of the UK-EU joint bodies. The UK Government should therefore commit to raising the status of the Northern Ireland First Minister and Deputy First Minister from invited observers to ex officio members of the UK delegation, where UK-EU bodies are discussing matters relevant not just to the protocol but to devolved competence. There should also be direct consultative avenues for Members of the Legislative Assembly—MLAs—of Northern Ireland with the European Parliament. These are practical and common-sense solutions to a real problem that, quite understandably, exercises unionists. I hope that UK Ministers, the Irish Government and the European Union will support them.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 10:49, 20 January 2023

My Lords, I too pay tribute to the noble Lord, Lord Jay, for the effective manner in which the affairs of the committee have been conducted, and to our very able staff.

The scrutiny work of the committee is profoundly important because the legislative and other changes which are ongoing are crucial to the future prosperity of the UK. The report addresses the economic and political impact of the protocol, and we have considered the impact of the arrival of the protocol Bill, which caused such consternation in your Lordships’ House—happily, it is now on the shelf, where it should remain.

We have heard evidence that the ongoing uncertainty and lack of stability are a barrier to inward investment, which is desperately needed in Northern Ireland. The data on the economic impact of the protocol is not sufficient to enable definitive conclusions to be drawn, but we know that other factors are at play such as the exclusion of non-UK labour from the market, which results from withdrawal rather than the protocol. We heard from one CEO that, following Brexit and Covid:

“Instead of the usual 100,000 people coming into the workforce, we will have fewer than 10,000.”

Trade has continued, but it would have been more difficult had the protocol been enforced in all its terms. Time is running out on the grace periods. We have the newly revitalised talks, and it is vital that a negotiated way forward is achieved. It is vital too that the Northern Ireland Assembly returns to do its work, that the democratic deficit in all its forms is addressed and that the problem of regulatory divergence receives urgent attention from the Government.

Concerns are being articulated about problems deriving from the omission to check goods coming into Northern Ireland from GB, particularly because supply chains are altering and goods are coming in from third countries from which they did not come before. Manufacturers and distributors have indicated to us that they are working hard to maintain markets and continue supplies, both east-west and west-east, but that selling into Northern Ireland from GB involves a lot more paperwork, resources and complexity. There are situations where businesses are absorbing that cost; we do not know how long that can continue. The MD of M&S told us that his company has had to open a new export centre in Motherwell in Scotland to facilitate deliveries to its stores on the island of Ireland. They require an extra 24 hours for delivery, with an impact on shelf life and therefore on profitability. A representative of the logistics industry told us that there was an initial 40% increase in the cost of moving goods to Northern Ireland. We have also heard that businesses are taking advantage of free access to the GB mainland.

There is a danger that, if the matters raised in the evidence we have heard are not dealt with speedily by government, if the grace periods expire and are not renewed, if the EU takes further infringement action against the UK and if the issues relating to the protocol are not resolved, Northern Ireland will face significant hardship in many areas, including the ability of businesses both in Northern Ireland and in GB to continue to do business. There will be lost jobs in both parts of the UK as markets can no longer be serviced in Northern Ireland, and there will be difficulty in accessing safe foods and adequate medication, for example.

We have had checks in the past. It is not new that we should have checks, but this is a different situation, and we have to face the reality of that.

I hope that the work of the committee is providing government with assurances about the legislation coming through and with information, which is vitally needed. As the noble Lord said, we need more information from government departments, but I hope that government, working with the committee, will continue to enable this important work.

Photo of Lord Weir of Ballyholme Lord Weir of Ballyholme DUP 10:54, 20 January 2023

My Lords, I join others in congratulating the noble Lord, Lord Jay, and the committee on this report; I welcome it and am happy to support all the recommendations. However, I do so in a context in which I have deep concern for the present and grave fears for the future.

The report rightly details that we need maximum scrutiny of EU legislation. I welcome in particular those parts of the report that deal with the detail and contents of Explanatory Memoranda, because, too often, Governments of whatever political hue tend to treat a requirement as a tick-box exercise. We must ensure that we have the maximum scrutiny.

However, the very thoroughness of the report highlights the fundamental problem that we have. The most detailed scrutiny that can be provided—if I can use an analogy—will present this Parliament, the Northern Ireland Assembly and the people of Northern Ireland with effectively a front-row seat as a spectator not of the match itself but of the match highlights, because the match has already taken place. Given that the JCWG meets with a level of confidentiality, we will not even get to see part of the match. It does not permit us to participate in the match in front of us. That is the fundamental democratic deficit.

British democracy, and indeed the foundations of world democracy, are based, on the one side, on the relationship between legislation and taxation and, on the other, on direct parliamentary representation and decision-making powers. The protocol renders that asunder. No matter what level of consultation, discussion or seats at tables that we have, unless there is throughout the United Kingdom the opportunity to reject or accept something democratically, we are simply in a position where laws are imposed on us.

Recommendation 7 of the Government’s response, which refers to paragraph 78 of the report, highlights the concern about divergence, in respect both of goods coming from Great Britain to Northern Ireland and of goods coming from Northern Ireland to Great Britain. Much has been said about the Irish sea border and the problems of movement between Great Britain and Northern Ireland. It will mean, for example, that companies in Great Britain either will be at a disadvantage when trading with Northern Ireland or may in some cases be completely prevented from trading. For Northern Ireland, it will lead to increased costs for customers and consumers; it will lead to reduced choice. Even on that flow, it will massively disrupt the UK internal single market, to the disadvantage of Northern Ireland.

The disadvantages for Northern Ireland goods moving to the United Kingdom have perhaps been less understood. If we are in a regime in which there is increasing regulatory divergence, as highlighted by the report, it will mean that Northern Ireland access to the rest of the UK market will again be deeply disrupted, as my noble friend and colleague Lord Dodds indicated—roughly 70% of Northern Ireland’s trade is with the rest of the United Kingdom. As we move towards arrangements with other countries, it will mean that Northern Ireland goods will not be able to be produced to the same standards and regulations. That will mean a reluctance, indeed opposition at times, within the rest of the United Kingdom to take goods from Northern Ireland; it will directly disrupt trade that is there.

These are the fundamental problems. Unless the Government tackle them, and do not see them as just a few checks on trade, we are in danger of disregarding the major problem; we will simply reheat it. If the emperor has no clothes, simply giving the emperor a bit of a makeover and leaving them naked in the future is not to our advantage. Unless we tackle the fundamental problem of ensuring that we get an agreement which has cross-community support in Northern Ireland and genuinely listens to the concerns that are there, we are, at best, taking part in Groundhog Day and, at worst, heading towards a deteriorating situation both for trade and politics in Northern Ireland.

Photo of Lord Hannan of Kingsclere Lord Hannan of Kingsclere Conservative 10:58, 20 January 2023

My Lords, it is a pleasure to follow the noble Lord, Lord Weir, whom I first encountered some 30 years ago when he was running the Young Unionists. His was a strong and true voice for County Down at the Stormont Assembly, and it will be again in our councils. I add my praise to everyone else’s in favour of the chairman of our Select Committee, the noble Lord, Lord Jay, whose temperate, measured and judicious approach has brought, out of a very disparate Select Committee and with the assistance of our staff, a very useful report. Everything that people said about the House of Lords before I became a Member—how disinterested it could be and how people could raise their eyes above the partisan scrum to try to discern some kind of consensus—has turned out to be true, at least in my Select Committee. For that, I thank all my fellow members.

I associate myself very strongly with the balance of the report. There is a sense, which is very widespread across the channel and in chunks of our media here, that it has always been the UK which is unreasonable, that we created the whole problem, and that any compromise will largely involve movement from our side. However, such a view does not survive first contact with the reality on the ground. The UK could have been extremely unreasonable; we could have stood on the letter of the law and said, “Look, we are a sovereign country, we are doing our own thing, and we are not going to raise so much as a matchstick of infrastructure on our side of the border; what you do on your side of the border is up to you”. That would have been legal under international law.

The Republic of Ireland opted out of our customs union in 1921, to the horror of Lloyd George, who thought that that was the final thing that could have symbolised some kind of continuing relationship between the two states. There would have been no comeback from that, if you like, but we did not do that. We did not do that because, first, we wanted to be good neighbours to the European Union, and, secondly, we recognised an obligation to both traditions in Northern Ireland—so we went out of our way to help the EU deliver on that aim. Let us remember that it is the EU that says it needs the border; there has never been any suggestion of that on our side.

All the provisions in the protocol Bill, which stalled but will come back in your Lordships’ House, are to that end: the red and green channel; Northern Ireland having the same right of taxation with representation that the rest of the world has; the freedom for companies in Northern Ireland that do not export to be able to follow UK regulation; and arbitration in accordance with every other international treaty. Those have been put together precisely so that they do not cause any inconvenience or damage to the EU, yet I do not think that that is acknowledged at all.

I sit on the Joint Parliamentary Assembly between this Parliament and the EU, and there is a very widespread sense there that the UK, as it were, is not moving an inch to try to accommodate its neighbours. In fact, at the last meeting, I made an intervention, saying that I am very pleased that we, on this side, do not require tests or checks on EU imports, and that I hope we will carry on doing that, because these are our friends, neighbours and allies and we should trust their standards. A large number of members were so preconditioned to expect me to have said something else that they all raged at me—“How dare you say that we should not have tests or checks on UK imports”—because people hear what they are expecting. There is an imbalance in the readiness to resolve the issue.

I very much hope that we will use Northern Ireland as a bridge between the UK and the EU, and that it will become a symbol of our friendship, but that requires both sides to recognise that the other side has legitimate concerns. It is a legitimate concern for any sovereign country not to have an internal border or a chunk of its territory governed from overseas without democratic representation. I am sure that all noble Lords in this House wishes the EU prosperity and success—I certainly do; I want it to be rich so that it is a better customer. As David Hume observed in 1777, the increase in the commerce of any one nation, far from hurting its neighbours, must serve to augment the commerce and riches of its neighbours. I just hope that that sense is reciprocated.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 11:03, 20 January 2023

My Lords, it is a great pleasure to follow the noble Lord, Lord Hannan. It is quite interesting that this debate falls almost exactly to the day when the agreement in Northern Ireland about restoring elections fell—that was yesterday. The House will know that that has not happened, and that there will be a further set of negotiations, which will probably end at roughly the same time as the anniversary of the Good Friday agreement. Yesterday, also, the British-Irish Intergovernmental Conference met as part of strand three of the Good Friday agreement —an agreement I chaired what feels like a million years ago. That really means that this debate is very relevant today. I wholly congratulate the noble Lord, Lord Jay, on his extremely skilful handling, not just of the issue but of the Select Committee. The differing views on the Select Committee on the protocol are intense, and I rather suspect that the members’ skills would be very useful in Belfast and London at the moment.

The report says that “particular circumstances” apply to Northern Ireland; of course they do. I agree with the point made by some noble Lords that there should be greater flexibility on the part of the European Union on Northern Ireland. There is no direct comparison between what happens in Northern Ireland regarding the protocol and the European Union, so it is clearly unique. It seems that the Government and the European Union, in their negotiations, should understand that particularity.

In the debate so far, the comments by the noble Lord, Lord Hannay, and my noble friend Lord Hain, were particularly useful, with very practical suggestions as to what could happen to improve the democratic deficit and ensure that people in Northern Ireland have some sort of say over the regulations, as far as the protocol continues, over their lives. That does not seem to be a huge ask: that people who will be elected in Northern Ireland, hopefully, will have some say on the laws that affect it.

I hope that the Minister takes into account those very significant recommendations, but it depends, of course, if there is a Northern Ireland Assembly or a Northern Ireland Executive—the jury is out on that at the moment. We have had negotiations of sorts, but it was not exactly ideal that, a week or so ago in Belfast, half the community in Northern Ireland was not represented because of a rather silly row over the protocol. Great effort should be made by the Foreign Office and the Northern Ireland Office regarding how they approach the negotiations. Frankly, if we had decided, 25 years ago, that it was the Government’s view as to who should or should not meet, we would not have had the Good Friday agreement.

The weeks ahead are really critical, and the recommendation from the noble Lord, Lord Dodds, that the Minister should tell us a little bit about what is happening at the moment would be very useful. I know that we cannot go into great detail on any of it, but he can tell us, roughly, if any progress is being made. If progress is not being made on these negotiations, there will be no Assembly and no Executive, and there will be no proper local scrutiny of the European Union regulations. Therefore, no progress will be made on the central issue dividing the parties at the moment: the operation of the protocol.

Photo of Baroness Hoey Baroness Hoey Non-affiliated 11:07, 20 January 2023

My Lords, the noble Lord, Lord Jay, has made some very sensible points on behalf of his Select Committee on improving the scrutiny of EU legislation applying to Northern Ireland and the democratic deficit. However, that all addresses the symptoms, not the problem.

What is the point of that scrutiny? We could sit for hours scrutinising everything that the EU wants to do to Northern Ireland if we cannot say no and change it. Millions of people voted to leave; many of us voted to get rid of the EU telling us what we had to do and what we could not get out of because of majority voting. This will not all be solved in any way, no matter how good some of the points on scrutiny are. We do not need the scrutiny—we should not need it—because we should not have the protocol.

The truth is that the Government should never have signed up to the protocol. I know that it is an international treaty, but it came after another international treaty—the Belfast/Good Friday agreement—and now, without doubt, the protocol is destroying that agreement and the hugely important principles of both cross-community consent and the democratic deficit. I wonder how long we in this House and in this country can allow a treaty to continue when it is working absolutely against the unity of its own country. The courts have said that it is subjugating the Act of Union and, when it is brought down, devolved government.

The Government may talk about taking back control, but, even last week they produced a statutory instrument to introduce the Official Controls (Northern Ireland) Regulations 2023, which gives powers to UK Government Ministers to implement and supplement the protocol by building structures at the ports in Northern Ireland for customs and other checks. If Northern Ireland officials do not apply these laws, a foreign court will impose sanctions on the UK.

However, Article 64 of OCR 2017, the regulation that they seek to give effect to, requires border control posts at the entry into the EU. By building these posts in Northern Ireland, the Government are accepting the principle that Northern Ireland is part of the customs territory of the European Union. Pre-action legal proceedings have now been lodged, which will force the Government to finally take an honest position. Is Northern Ireland part of the UK customs union, as is boldly proclaimed in Article 4 of the protocol, or is it part of the EU, as per the statutory instrument, which treats Northern Ireland as part of the EU? I am sorry to say it but the Government are speaking in a kind of double-speak; it is as if they want to conceal their true intent and kid people in Northern Ireland that they are actually really going to sort the protocol, when they have no intention to do so.

I refer noble Lords to the recent publication of an excellent report from the Centre for the Union written by Ethan Thoburn, Jamie Bryson and James Bogle, which gives very clear views on how we can restore Northern Ireland’s place in the union. It is a paper analysing the impact of the protocol on Northern Ireland’s constitutional status. Many noble Lords have talked about the Assembly coming back. Really, the Government have to accept, realise and understand that, until Northern Ireland is fully back as an integral part of the United Kingdom, Northern Ireland devolution will not happen and the Northern Ireland Assembly will not come back. That needs radical change to the protocol, not tinkering.

If only the Secretary of State for Northern Ireland would, rather than denigrating those parties that are sticking to their mandate of saying that they would not go back into devolution until the protocol was sorted, spend more time trying to convince Ministers, particularly in the Foreign Office, that the protocol has to go, and there has to be a restoration of Northern Ireland to its rightful place in the UK. It is only when that happens that we will get devolution back.

Photo of Lord Bew Lord Bew Crossbench 11:12, 20 January 2023

I rise, as so many other noble Lords have done, to praise the work of the noble Lord, Lord Jay, and his committee. I have attended several of the public sessions and have given evidence at a private session. Perhaps most remarkably, last Wednesday’s session from the pharmaceutical industry was really interesting about how we have not actually resolved the problem, as many people believe, of medicines yet for Northern Ireland. It was very important evidence, to which I hope the Government pay attention.

I agree with everything that the noble Lord, Lord Jay, said today, but I want to add one thing. He ended by saying that Northern Ireland is part of the EU single market. It is also part of the UK single market, and the protocol commits the EU to respecting the functioning of the UK single market. It is a complicated matter, but it is right there in the protocol. How we do it is rather difficult, but it is there—it is part of the UK single market as well. That is the difficulty in making it work properly. It is not the GB single market but the UK single market.

Briefly, it is clear—and I was struck by the observations of the noble Baroness, Lady O’Loan—that there are newly revitalised talks. On the day when the Northern Ireland protocol had Second Reading in this House, there was a regret amendment, and it was widely said across this House that the introduction of that Bill would doom those talks and be a most dreadfully provocative thing to happen. It is a matter of fact and an absolute certainty that that was not a correct line of argument. We are not at the point yet where we can say with confidence that there will be a workable deal, but the deal that there already has been on the transfer of data between the UK and the European Union is a sine qua non for a workable deal. Those are positive things, and we meet at a moment of much greater positivity than usual.

I wanted to say something else about my noble friend’s report, which is in many ways a landmark report. I give one reason for that. Every speaker so far has reflected the theme of the report—the democratic deficit. I remember when the May version of the protocol was published; there was not even a mention of the Northern Ireland Assembly, reflecting EU pressure. For six months or so there was an argument behind the scenes but, for a long while, legal officers of the May Government were under inquiry from journalists referring to the Matthews case in Gibraltar, which raises the question about how you can impose things top-down with no democratic assent. That case, which is very important in European law, was dismissed, and for six months there was a solid position—it was not a problem. We are now in a totally different world.

To be fair to the May Government, by about March 2019, in the Statement made by the Brexit Secretary on 12 March and made in this House by the noble and learned Lord, Lord Keen, the position gradually changed. The move began towards accepting that there was a problem with democratic deficit, and there is now total consensus in this place. There were 200 or more MPs who voted for that Bill without worrying one bit about the total absence of democratic deficit. Now there is a new consensus, and I welcome it, but it is important to note that it is part of the development of an argument. As the report of the noble Lord, Lord Jay, says, it is important that the protocol in its eventual working be compliant with the Good Friday agreement. It was very hard to argue that for six months but, eventually, the Brexit Secretary in his Statement in the Commons on 12 March finally acknowledged that it was a reasonable request and a reasonable argument.

This report is a landmark: it represents a transformation of the terms of the debate on this subject as was. We owe it to the Irish officials, who spoke so honestly about the British negotiating defeat in 2017 and expressed their surprise publicly to Politico, and talked about the consequences of that humiliation. That was the function, above all, of the May Government effectively having lost the general election and being desperate to get into talks at any price. We owe it to the Taoiseach—and the noble Lord, Lord Lamont, referred to the fact that he said that the protocol was too strict, when many people in this House and many in the Northern Ireland Assembly were full implementers. The Taoiseach repeated it after the EU’s recent statement, saying that the protocol was still a thing; he repeated again that it was too strict. So we owe a lot to the honesty of Irish politicians and civil servants, but we are now in a new place. The quality of the work and the detail in the report of the noble Lord, Lord Jay, is excellent, and on the substantive matters it has achieved much and reflects much of the new reality.

Photo of Baroness Altmann Baroness Altmann Conservative 11:17, 20 January 2023

My Lords, I, too, congratulate the noble Lord, Lord Jay, for his diplomatic handling of his remit and his excellent introduction to today’s debate. The fact that unionists, Brexiteers and remainers have all paid tribute is a testament to his skills.

Of course, the hard Brexit chosen and the Northern Ireland protocol agreement signed must entail a democratic deficit; that is agreed by all now. Practical suggestions have been proposed by, among others, the noble Lord, Lord Hain, and I wonder whether my noble friend the Minister could respond as to whether his Government will take any of those suggestions forward.

The democratic deficit is of serious concern. There was insufficient consultation and approval from all Northern Ireland parties before finalising the arrangements for our future relationship with the EU. Northern Ireland was never going suddenly to attach itself geographically to the rest of Great Britain and suddenly magically separate itself from the single market and the EU. There was always going to be a need for practical arrangements of some kind, or regulatory alignment. The noble Lord, Lord Hannay, has proposed some equally practical suggestions for giving Northern Ireland a voice. Will my noble friend consider taking any of those forward?

The answer to the democratic deficit must not just be to replace our country’s vital parliamentary checks and balances by ministerial diktats, which override and break the agreement that our own Government signed. Of course, the noble Baroness, Lady Hoey, is right that perhaps we should never have signed it, but sign it we did—we are where we are. It feels as if the Government are still not taking seriously the implications of the actual agreements that they have signed with the EU.

Can I ask my noble friend to please answer the question raised by the committee and by the noble Baronesses, Lady Ritchie and Lady Suttie, today about whether the Government are keeping a single log of all cases of regulatory divergence arising from EU and UK legislative changes since the Northern Ireland protocol came into force? Will they publish this, since that is surely essential for future arrangements?

My noble friend Lord Lamont stated that Brexit did not require dynamic alignment. That is true, but it is not as a consequence of EU unwillingness to adopt alternative arrangements that we are where we are. My noble friend Lord Hannan suggested, for example, that there be no checks at all. I must respectfully disagree. Does my noble friend the Minister agree with our noble friends on this? If so, why did our Government sign the protocol, which requires that to happen? What are the other arrangements that could or should have been conceded?

The single markets lies at the very heart of the EU. When our then Prime Minister signed the withdrawal agreement and the protocol, how did he believe that it could fulfil the requirements of the Good Friday agreement and meet the demands of all parties? The fact that, immediately after signing that there would be a border in the Irish Sea, he declared that no customs checks would be required does not change the reality. Was the plan to use Northern Ireland as a Trojan horse to gain favoured access from the mainland to the single market? I cannot say. In the meantime, however, can my noble friend update the House on talks that are going on with the EU on the Northern Ireland protocol?

Photo of Lord Liddle Lord Liddle Labour 11:21, 20 January 2023

My Lords, as a member of the European Affairs Committee, I add my thanks for all the work that the noble Lord, Lord Jay, does on the Northern Ireland protocol sub-committee and for the excellent work of Stuart Stoner and his officials. They work really hard and do their best in a very difficult situation.

We are dealing with a world of second-bests here—possibly third-bests. I have great respect for the views of the unionists that these changes have been imposed on Northern Ireland without cross-community consent. I think that the noble Lord, Lord Bew, was the first person who pointed that out to us in this Chamber; it is a fact that this has happened. But there is now no going back to the status quo as it was before Brexit. Brexit has altered everything. It has fundamentally altered relations on the island of Ireland and there is no way that we can go back to where we were as a United Kingdom prior to that.

However, I also agree with the noble Lord, Lord Lamont, that the European Commission has not approached this question in the most tactful manner. From my experience of working in the Commission, I say that it sees its role, fundamentally, as protecting the competencies of the EU in trade and the single market. It has looked at the Irish question from that very narrow institutionalist perspective and has not taken into account as fully as it should the complexities of the Northern Ireland situation. Do noble Lords think that our Government actually pointed that out? Boris Johnson certainly did not; he was only too anxious to sign off on this protocol agreement in order to “get Brexit done”. He did not give a—sorry, I was about to swear there. He did not care one little bit for Northern Ireland. That should be borne in mind.

How do we make the best of this bad job? We must work much harder at getting effective mechanisms working between the Northern Ireland people, the Assembly and its stakeholders, and the European Commission. The situation requires dynamic alignment, but that has to be done in a way where the views of the people in Northern Ireland are fully taken into account. I agree with what the noble Lord, Lord Hannay, suggested, and I think that there should be a regular consultative forum, where senior people from the Commission go to Belfast and listen to and debate the views of politicians from all parts of Northern Ireland. I am a member of the new UK-EU Parliamentary Partnership Assembly, and we should establish a sub-committee that brings together Northern Ireland politicians and MEPs on a regular basis. That would be very constructive.

We must recognise that this is the world of the second-best and there is no going back to what it was before Brexit.

Photo of Lord Cormack Lord Cormack Conservative 11:25, 20 January 2023

My Lords, as always, I am delighted to follow the noble Lord, Lord Liddle. Although I am slightly sorry that his expletive was deleted, it was a very splendid and spirited speech, as always.

I begin with an expression of regret. If noble Lords look at the date on the excellent report of the committee of the noble Lord, Lord Jay, they will see that it is 22 March last year. The date of the Government’s response is 26 September last year. Here we are on 20 January before your Lordships’ House has had a chance to look at this. Those in charge of arranging business in this House should have a little more regard for the importance of our committee reports and a little less regard for the burdensome, turgid legislation that is placed before us on an almost daily basis.

As I listened to the noble Lord, Lord Jay, I could not help but think, “If that man had been in charge, we would have solved it by now”. He has all the attributes of the consummate diplomat, marvellous experience and the ability to see the other side. I agree with the noble Lord, Lord Liddle, in his strictures on the protocol; what we needed was a flexible garment and what we got was a straitjacket. Who signed up to the tailor’s plans for the straitjacket? The noble Lord, Lord Frost, the Government, the then Prime Minister—they imposed it on us, not the EU. It was imposed on us by our own Government. That is, I am afraid, something that should not be easily excused.

I am glad that the protocol Bill is on hold. Although I have some sympathy with the points made by the noble Lord, Lord Bew—whom I greatly admire, as I think we all do—the fact that it has been on hold for some months has assisted the negotiations that have been taking place, I think, because we have not been in the position of making a sword of Damocles while people were sitting around the table. I very much hope, as I think we all do, that the negotiations come to a successful, constructive conclusion, but they will need to be built on.

So many colleagues from different sides of the argument have talked about co-operation. I entirely agree. Of course, the committee that produced this report has a valuable part to play, but so would a Joint Committee of both Houses, and so would a committee that embraced within it Northern Ireland politicians as well as Members of the European Parliament—the noble Lord, Lord Hannan, touched on this, or something very like it. It is absolutely vital that we recognise, in a Europe that is more dangerous than it was a year ago, that those of us who have democratic values must build on them together.

It is absolutely crucial, in my view, that we see a strong European Union but also a strong United Kingdom that recognises its close friendship and ties over centuries with our neighbours and friends in Europe. Let us try to go forward building on the very good recommendations of this report but, in future, when reports of this magnitude and importance, with far-reaching implications, are drawn up by committees of your Lordships’ House, let us have the chance to discuss them in under six months, rather than almost a year later.

Photo of Lord Bilimoria Lord Bilimoria Crossbench 11:30, 20 January 2023

My Lords, since the referendum in June 2016, I have always felt that Northern Ireland has been the Achilles heel of Brexit. There is no solution without compromise of some sort, and the protocol is, in essence, a compromise, trying to protect the Good Friday agreement but, yes, creating a border down the Irish Sea—a border between Great Britain and Northern Ireland within the United Kingdom.

Under the protocol, Northern Ireland is subject to the EU’s customs code, VAT rules, single market rules and rules on state aid applied to the UK in respect of measures that affect trade between Northern Ireland and the EU covered by the protocol. It also requires the UK to ensure that there is no diminution as a result of Brexit of the rights, safeguards and equality of opportunity set out by the Belfast/Good Friday agreement. Also, future changes in EU legislation may apply to Northern Ireland. The noble Lord, Lord Jay, referred to 300 pieces of EU legislation. I thank him and his committee for its excellent report. It points out so many issues I would like to put to the Minister. The committee highlighted the inconsistent and at times poor quality of Explanatory Memoranda and ministerial correspondence. Does the Minister acknowledge this?

Of course, the democratic deficit has been mentioned by just about every noble Lord who has spoken in this debate. The committee concluded that all sides had a continuing obligation to ensure the operation of the protocol and this dynamic application that has been referred to as well, taking into account the delicate balance in north-south and east-west relations. The Government have agreed with the committee’s assessment that there is a democratic deficit—will the Minister confirm this?—and that there needs to be much more ambition to sort this out.

The committee also reiterated the importance of keeping a comprehensive audit or log of both EU and domestic legislation. Again, is this going to happen? I think it is a necessary requirement. The noble Lord, Lord Hannay, very clearly pointed out that the EU is not picking on Northern Ireland in any way. The noble Lord, Lord Hannan, spoke about an imbalance. There is an imbalance. When I travel to European countries, I have to go in a separate queue but EU citizens coming here do not have to queue up and are allowed to go through our e-gates. That is just one example. We need to have a close relationship with the EU to make any of this work. There needs to be a spirit of trust and, as the noble Lord, Lord Hannay, said, we may not have a vote but we should have a voice.

The noble Lord, Lord Godson, with his huge knowledge and experience of Northern Ireland, has pointed out that the divergence is much greater than anticipated. He said that engagement with the European Parliament needs to be much better and very clearly pointed out that the EU is our largest trading partner. The noble Lord, Lord Hain, said very clearly that Northern Ireland is now a rule-taker, as part of the EU, whereas earlier Northern Ireland and the UK were rule-makers within the European Union. That is a reality. The noble Baroness, Lady O’Loan, spoke about the difficulties experienced by business and the increase in costs. She gave the example of Marks & Spencer. I can speak, as a former president of the CBI who visited Northern Ireland, about the difficulties experienced by our members. We just want to get on with business, and a green channel/red channel route based on trust is one solution.

With all respect to the noble Lord, Lord Bew, good will has been strengthened by pausing the protocol Bill, because that Bill could create all sorts of issues, including, possibly, a trade war. James Cleverly has said that he wants it to be done, but he is not agreeing to the deadline. Will the Minister say that we should resolve this in time for the 25th anniversary, when President Biden might visit?

The noble Lord, Lord Lamont, asked: where will the landing zone be? Earlier this month, I was skydiving in Cape Town from 9,000 feet, plummeting down to 4,000 feet before the parachute opened, and we landed on a landing zone. It was a patch of sand and it was a very soft landing zone. We need a soft landing zone, because beyond this protocol is the big prize of the trade and co-operation agreement—the TCA—which is very thin. We need to do so much more to enhance that agreement with our biggest trading partner. Let us resolve this and then we can get on with the much bigger prize.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 11:35, 20 January 2023

My Lords, I am delighted that the noble Lord, Lord Bilimoria, came through that terrifying experience to share his wisdom with us today, not least as the former president of the CBI. I absolutely endorse the tributes paid to the noble Lord, Lord Jay of Ewelme, for his chairmanship and stewardship as a sort of welfare counsellor to the sub-committee: he is not a former top diplomat for nothing.

This report is not about the protocol itself, but about the process of scrutiny. The noble Lord, Lord Jay, kept to the confines of his report in his initial presentation. As the noble Lord, Lord Lamont, said, it contains a plethora of constructive and practical suggestions, and these were referred to and, indeed, added to during the debate. While the noble Lord, Lord Jay, kept to the confines of the report and its subject, other speakers did not, beginning with the noble Lords, Lord Lamont, Lord Dodds and Lord Weir. They ranged a bit more widely, so I will give myself permission to do so just a little.

I went back to read the introductory report of the sub-committee from July 2021. Everything in that report is still entirely valid, including that the protocol was not created in a vacuum but as a consequence of Brexit. As the noble Lord, Lord Hannay, pointed out, this was a UK Government choice. The noble Lord, Lord Lamont, referred to paragraph 30 of the Government’s response to the report, which says:

“The imposition of EU law was a consequence of the EU’s unwillingness to accept other solutions.”

Well, as has been remarked on during the debate, the Government negotiated, signed and ratified. They insisted on ratification of the protocol, so this idea that “It’s nothing to do with us, guv”—particularly the “guv”—is, I think, pertinent in this context. Indeed, the introductory report from the sub-committee I just referred to, from two and a half years ago, said:

“Just as unionists and loyalists object to the Protocol being imposed without their consent, so nationalists and republicans point out that Brexit was imposed on Northern Ireland even though the majority of votes there were to remain in the EU.”

As the noble Lord, Lord Hain, pointed out, there was no democratic deficit before Brexit. I really do not want to go on too much about this, but I am responding to remarks made as if this came from outer space. For those of us who have some experience of the EU’s democratic processes, one of our main objections to Brexit was that we would become a rule-taker, not a rule-maker. The sub-committee’s report of July 2021 said:

“While there are mitigating steps that can be taken … there is no apparent way to eliminate the democratic deficit.”

That is absolutely true. The noble Baroness, Lady Altmann, was one of those who repeated the point that it was obvious what the problem was going to be. I say to the noble Lord, Lord Bew, that it is not a new acknowledgement, or some sort of new revelation, that there is a democratic deficit.

As this report concentrates on, the important thing is how we can mitigate and improve the management of the situation. The noble Lord, Lord Hannay, added to the suggestions in the report that the UK should stop blocking an EU office in Belfast—which obviously seems sensible—and the idea of having a Northern Ireland Executive office in Brussels. Scotland and London, among others—forgive my ignorance; Wales probably did as well—had their own offices in Brussels back in the day. It could be not just a section of the UK mission but an office in its own right, as the Scotland and London offices were.

My noble friend Lady Suttie referred to the Commission non-paper of October 2021, which had lots of sensible suggestions on how to improve the practical situation. That is what we need to concentrate on; how will it be taken forward? It is not helpful that we have had to labour for the last few years, as the sub-committee noted in its invaluable introductory report of two and a half years ago, against the Government’s apparent reluctance to accept their obligations under the protocol and the consequences of their policy choices, as we have heard from the noble Lord, Lord Liddle, and others.

I completely understand the dilemma of the noble Lord, Lord Liddle, over language when thinking about the former Prime Minister. I am afraid that there was dishonesty—“lying” may be unparliamentary, so let us stick to that term—about what paperwork and checks would be necessary. There was no clarity about what practical obligations would be imposed on stakeholders in Northern Ireland, so it has been a shock to business and others. By the way, I do not think the statistics bear out that the protocol has had a poor impact on the economic situation in Northern Ireland; the situation is rather to the contrary.

As the sub-committee has been pointing out for its entire existence, there was a paramount need for the British Government to be trustworthy, rigorous and honest and show good faith and good will in acknowledging what they signed up to and its implications, and then carry through the good governance machinery necessary to make it all work. Unfortunately, that did not happen. We had the internal market Bill and now we have the Northern Ireland Protocol Bill, which is parked—thank goodness—and will hopefully go up in a puff of smoke. Both of them have been detrimental, to put it mildly, to any chance of demonstrating trust and getting on with the necessity of implementing the protocol.

To quote the report we are discussing, this is not helped by the fact that

“the Government’s stated intention in pursuing the particular form of Brexit it has chosen is to give the opportunity for the UK (in respect of Great Britain) to diverge from EU Single Market rules.”

That complicates the situation because, if you have the moving target of regulatory divergence all the time, there will be no stability in the situation for Northern Ireland, which is effectively under single market rules.

Today we are trying to discuss day-to-day process rather than policy. One element that we can demonstrably very much rely on is the assiduous, diligent and thorough exercise of the scrutiny duties of our protocol sub-committee under the noble Lord, Lord Jay of Ewelme. As the noble Lord, Lord Dodds, said, no other body is doing this. The sub-committee on the protocol is filling a gap where the Government should be leading the way. I enjoyed some of the acerbic comments in the report on the Government’s failure to fulfil their duties in a prompt and efficient way. I thought some of the language reflected the experience of the noble Lord, Lord Jay, in his long career in Whitehall. It is not good enough to have sloppy Explanatory Memoranda —“unacceptably poor” is the phrase used.

I am running out of time. What occurred to me in reading the report was the need for trust, honesty, rigour, respect, fairness, engagement, fulfilment of obligations, provision of information, good will and good faith. That is all that is being asked for—I see the Minister grimacing; it is a lot—and it is not too much to ask from a Government who want to implement the obligations that they signed up to.

Finally, the noble Lord, Lord Godson, referred to the Irish Government. It is worth recalling that the sub-committee referred in its introductory report to the Irish Government’s important role in facilitating dialogue between the UK Government and the Northern Ireland Executive on the one hand and the EU on the other. We cannot expect them to take on too much, but we owe it to them to recognise the role they have played in the last few years.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 11:46, 20 January 2023

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.

Photo of Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon Minister of State (Foreign, Commonwealth and Development Office) 11:53, 20 January 2023

My Lords, first, I join others in both acknowledging and thanking the noble Lord, Lord Jay, and all the noble Lords on the protocol sub-committee for putting together this excellent report. I take on board the points made by my noble friend about the tabling of this debate. My noble friend the Chief Whip, who is also present on the Front Bench, has the challenge, as always, to ensure effective debates and scrutiny and I think today’s debate has underlined exactly that.

Again, I commend the noble Lord, Lord Jay, and the suggestion that he should be a part of the negotiating team was an interesting one, maybe a practical one. I commend him because when you have the likes of my noble friends Lord Hannan and Lord Cormack, as well as the noble Baroness, Lady Ludford, and the noble Lord, Lord Dodds, all paying tribute to the noble Lord, Lord Jay, for the balance and perspective he brought in pulling together recommendations, it is no mean feat. I am sure we all commend him for that. Equally, I recognise the measured substance and tone of the noble Lord, Lord Ponsonby, in this debate. This debate can strike emotions, and rightly so. I also acknowledge—while the challenges are there for the Government of the day—the positive and constructive engagement with the noble Lord, and his contribution today underlines that; perhaps unlike other contributions, but there were some that were measured in staying on the actual debate in front of us. I also commend the noble Lord, Lord Liddle: when you are running away with your emotions, to stop yourself mid-flow is always a challenge, and I think we all noticed his restraint—hats off to him for that.

The committee’s report and today’s debate get to the very heart of the challenge and the problem with the current application of the Northern Ireland protocol. The noble Baroness, Lady Hoey, reminded us of this, as did other noble Lords. They recognise it has been a hindrance to trade between Northern Ireland and the rest of the United Kingdom. The noble Lord, Lord Bew, again underlined the key principle that there are two single markets to be considering here: the European single market and, what has been forgotten, the UK single market, which is at the heart of our union and our United Kingdom.

The committee and the debate recognise the democratic deficit—which many noble Lords referred to—in that certain EU laws apply to Northern Ireland on a dynamic basis, without consent from parliamentarians in Westminster or Stormont. They also recognise that the Northern Ireland protocol has become a roadblock to the formation of the Northern Ireland Assembly and, indeed, the Executive. I will come on to some of the more substantial points made by the noble Baroness, Lady Ritchie, about the importance of updates on negotiations. I will also pass on her request about engagement to my right honourable friend the Foreign Secretary. Having known the Foreign Secretary for many years, I am sure that noble Lords will acknowledge that his approach to trying to resolve current issues in Northern Ireland, including the negotiations with the European Union, is reflective of his desire to achieve a practical and pragmatic outcome for all.

Since the committee published its report, the Government and the relevant committees in both Houses have reached an agreement on the Government’s ongoing EU scrutiny commitments. I join the voices, including that of the noble Lord, Lord Jay, in saying that the work that has gone on in achieving this consensus has led to a really positive outcome for all involved. I pay tribute to everyone. I also highlight the importance of this report in influencing the provisions of that agreement. Some of the report’s recommendations are directly reflected in the agreement, such as the automatic deposit of any new EU legislation which the EU has informed the UK of as being within the scope of the protocol. The agreement we reached with the scrutiny committees also encompasses that continued submission of Explanatory Memoranda on EU proposals which amend or replace existing proposals that fall under the scope of the protocol, including the EU legislation in Annex 1.

Finally, the report also made the important point that the material provided by the Government in Explanatory Memoranda should be of the highest quality, so that it can be supportive of effective scrutiny. I take that on board. As the noble Lord, Lord Jay, will know, officials from the departments are working very closely with the committee clerks on exactly this point. It is very much a live discussion, and we hope that that will reflect the views of the committee in the detail and the nature of what is required within Explanatory Memoranda. As the noble Lord, Lord Jay, will already be aware, the Cabinet Office Minister of State wrote to the Secretaries of State in 2021 to stress the importance of submitting well-crafted Explanatory Memoranda. But I take on board the points made in the report.

Turning to some of the questions raised in our debate, as I said, government officials are working with committee clerks to review and enhance the format of Explanatory Memoranda so that they better reflect the information that committees find helpful. As part of the agreement with the committees, there will be an interim review of arrangements in the summer and then a full review after two years or at the end of this Parliament, whichever is sooner. The Government look forward to working with the committees to see how these arrangements could be improved still further.

There were some practical suggestions made in the debate on the issue of divergence; I cannot answer the full detail of those today. The noble Lord, Lord Jay, raised an important point on this issue. The FCDO is working very closely with other government departments to analyse the EU law that applies in Northern Ireland. This involves identifying issues relating to regulatory divergence and, where necessary, raising them with the EU directly. While some of these discussions require discretion, the Government regularly update the relevant committees in both Houses through the publication of Explanatory Memoranda. I know that the noble Lord has also recently sent correspondence to my right honourable friend the Foreign Secretary on this matter. I asked for an update on that, and I understand that a response is due to be sent in the very near future. I will follow up again on that point. These issues were also raised by my noble friend Lady Altmann and the noble Baroness, Lady Suttie, in their contributions.

The noble Baroness, Lady Ritchie, also raised the important point of divergence and its impact. I reassure her that this is a cross-government endeavour; the FCDO is not alone. I have already alluded to my colleagues in the Northern Ireland Office, and I am delighted that my noble friend Lord Caine has joined us on the Front Bench for this important debate. He and I are working very closely on this. I will get on to negotiations in a moment, but I say first and foremost that we do all sit in one room—we convene these meetings together regularly, as was underlined by the visit my right honourable friends the Northern Ireland Secretary and the Foreign Secretary made to Northern Ireland. We are also working with other departments, including BEIS and the Cabinet Office, and linking in with the work on common frameworks and the UK Internal Market Act. My own officials work very closely with their partners across government, including on quality, ensuring that the issues on Explanatory Memoranda that have already been raised are directly addressed.

Turning to the negative impacts of the protocol, the noble Lord, Lord Murphy, described the situation as unique, and I agree with him. The issues with the way the protocol has been implemented are causing this debate and the problems in Northern Ireland, as we heard from many noble Lords, including my noble friends Lord Dodds and Lord Weir. Traders have to bear additional costs and bureaucracy. The noble Lord, Lord Bilimoria, highlighted the challenges that companies are facing; they want clarity. I know that my noble friend Lord Caine has been engaging directly with many companies and businesses over a number of months. I am sure we will return to some of these discussions and debates, but I assure noble Lords that their views matter, and that is why we are engaging and ensuring that they are factored into the discussions and negotiations we are having with the European Union. As I say, traders have to bear additional costs and bureaucracy and are missing out on some of the advantages being enjoyed in the rest of the United Kingdom. This is unacceptable.

The political cost is also unsustainably high. The Belfast/Good Friday agreement is based on respect between all communities and the consent of all communities, and we must keep that at the heart of our approach. The protocol itself is directly undermining that principle and preventing the restoration of the Northern Ireland Executive. Again, the noble Baroness, Lady Hoey, raised this point. That is why it is a top government priority to continue to work with our European partners to address these problems and put the protocol on a sustainable footing. This requires commitment, negotiation and movement from both sides, as my noble friend Lord Hannan noted.

Turning to the Government’s approach, my noble friend Lord Lamont, the noble Baroness, Lady Ritchie, and others raised the important issue of the democratic deficit. We have long held, since our Command Paper back in 2021, that this will need to be addressed if the protocol is to operate sustainably. This is one of the issues we are seeking to address directly in discussions with our EU counterparts. The noble Lord, Lord Hannay, made some very practical suggestions. It would be very easy for me to nod and agree with all of them, but he knows from his experience as a senior diplomat that I will have to take these back. Other noble Lords also raised some practical suggestions on this issue that I will certainly take back and share with colleagues, and indeed my right honourable friend the Foreign Secretary. On his specific questions, I am not aware of any discussion about the EU office in Belfast, but I think there is merit in the process to ensure that the impact of EU legislation is fully understood. My noble friend Lord Caine has also heard that point very clearly.

Many noble Lords focused on negotiations, and rightly so. I recall hearing very clearly when the Northern Ireland Protocol Bill was in Committee about the importance of discussions with our partners, and I emphasise that point now. If I can digress on recent events—the noble Baroness, Lady Ludford, said that we have gone quite wide, but events do matter—events in Europe and the war on Ukraine have clearly demonstrated the importance of partnership working and approaching those who seek to disrupt democracy, cause division and sow discord, and that there is unity in action. It is in that spirit that I know my right honourable friend the Foreign Secretary and European Commission Vice-President Maroš Šefčovič have had regular discussions. They last discussed these issues earlier this week, on Monday 16 January. I have been part of some of those meetings, and we will continue to engage on the practical issues. As I said in that debate, it is not just about atmospherics; there is cause and focus on substance as well. They have spoken regularly over recent months.

As the noble Lord, Lord Bew, reminded us—and I update the noble Lord, Lord Murphy, and my noble friend Lady Altmann—the Government reached an agreement with the EU on the way forward regarding the specific question of the EU’s access to UK IT systems. This issue was raised with us directly as a critical prerequisite to building trust and providing assurance, which provides a new basis for EU-UK discussions. The Foreign Secretary and Vice-President Šefčovič’s conversations on Monday also took stock of recent progress and scoped further work for potential solutions. These engagements and negotiations continue in a constructive and collaborative spirit at all levels—including technical discussions between officials, which take place very regularly.

The noble Baroness, Lady Hoey, raised the issue of discussions on the recent Defra statutory instrument. I emphasise to her, and indeed to all noble Lords, that this is required in any outcome, including the green and red lane model under the Northern Ireland Protocol Bill. I assure noble Lords, as I have already said, that the Secretary of State for Northern Ireland and the Foreign Secretary remain in close contact and work very closely together. I know through direct attendance of various meetings on this very issue that we convene these meetings across government.

I am conscious of time and responding to the important issues that were raised. Turning briefly to the important and practical points made by the noble Lord, Lord Hain—there he is; sorry, he caught me out there, as I was scanning the Benches—he speaks from great insight and experience. The Government have long held that the protocol is leading to a democratic deficit where EU law applies in Northern Ireland but with little meaningful consultation on that EU law. I can say to the noble Lord that the representatives of the Northern Ireland Executive already attend meetings at the joint consultative working group, and we value their important expertise. However, I take on board what he has said. There are always ways to improve existing processes and mechanisms, including through the discussions we are currently taking forward with the EU. I will certainly reflect on the practical suggestions he has put forward again today.

My noble friend Lord Lamont reminded us of the anniversary of the Belfast/Good Friday agreement. Preparations for the anniversary are currently under way. Attendance is being considered across government, including in the British embassy in Washington. Confirmed details on who will attend will be announced in due course and I will keep the House updated.

To conclude, I reiterate once again that, when it comes to practical working with our partners in the EU and the issue of the Northern Ireland Protocol Bill, the Government’s preference remains for a negotiated outcome. I hope that some of the details I have shared this morning underline both that commitment and the progress that is being made in the discussions. However, the Government introduced the Northern Ireland Protocol Bill to fix the practical problems created by the protocol in the event that this is not possible. I totally take on board the points raised by the noble Baroness, Lady O’Loan, and my noble friend Lord Dodds that these things need to work in the interests of all communities across Northern Ireland. Indeed, they need to work for the whole of the United Kingdom.

From a political and practical perspective, the current situation in Northern Ireland is not sustainable, as highlighted by the noble Lord, Lord Bilimoria. The protocol is inflicting increasing economic and political harm and undermining the very principles of consent that underpin the Belfast/Good Friday agreement, as we were reminded by several noble Lords, which must remain paramount in all negotiations and discussions. The Government are committed to fixing these issues so that the Executive can be formed. We are committed to ensuring that all businesses in Northern Ireland can prosper. We are committed to finding solutions through the negotiations with the European Union and ensuring that both single markets and all people across our United Kingdom can truly prosper.

Photo of Lord Jay of Ewelme Lord Jay of Ewelme Chair, Windsor Framework Sub-Committee, Chair, Windsor Framework Sub-Committee 12:12, 20 January 2023

My Lords, I am very grateful to the Minister for his reply to the debate. I am also very grateful to all Members who have spoken from all sides of the House in what has been a very wide-ranging debate. In fact, the debate has ranged rather wider than the subject of the report. If I may, I will return for a moment to the report to say that I think the debate has also shown that, while scrutiny may seem dry and technical, it really matters. It matters to the businesses and the people of Northern Ireland. I commend the report to the House.

Motion agreed.