Northern Ireland Protocol

Baroness Smith of Basildon Excerpts

Tuesday 28th February 2023 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for repeating the Statement—that was quite a feat of endurance. He should be grateful that we have a time limit today; the Prime Minister was on his feet for over two hours yesterday.

I also thank the Minister for his comments about Betty Boothroyd—the noble Baroness, Lady Boothroyd. So many Members of this House will have memories of her that we cherish and enjoy sharing. I can hear her voice today: I remember answering the phone and hearing her opening words, “Now listen, luvvie”—and of course I would. As sad as we are at her passing, we can only celebrate a long life, well lived. We look forward to the opportunity to commemorate her and share our stories with a smile.

It is with real sadness that I echo the comments about the shocking and cowardly attack on PSNI Detective Chief Inspector John Caldwell. The impact on him, his family, his friends, his colleagues and all who know him is devastating. For DCI Caldwell and his family, life may never be the same again. For his colleagues and the community he serves, this is a stark reminder that there remain a few who do not share their commitment to peace. The most moving, emotional and, in many ways, uplifting scenes that I saw on TV this past weekend were of the people of Omagh—a town that suffered so much—standing united to proclaim, “No going back”. They represent the people of Northern Ireland. The immediate and unequivocal joint statement from Sinn Féin, the DUP, the SDLP, the Alliance Party and the UUP was, in so many ways, a manifestation of how far we have come since the signing of the Good Friday/Belfast agreement in 1998. The shooting of DCI Caldwell is a reminder of just how crucial it is to continue working together to uphold peace and support Northern Ireland’s institutions.

When the people of Northern Ireland overwhelmingly endorsed the Good Friday agreement, the UK Government took on responsibility as a joint guarantor, so a key question for many of us, when the protocol was negotiated and signed by then Prime Minister Boris Johnson, was its compatibility with the agreement. We knew it could never be perfect, but we also recognised that the assurances given by Mr Johnson that there would be

“no forms, no checks, no barriers of any kind”

on goods crossing the Irish Sea post Brexit were not based in reality. Who can forget his flamboyant promise to an audience of Northern Ireland businesspeople that they should call him if anyone tried to get them to complete a form? That was not just wrong; the lack of honesty was disrespectful to those who had raised legitimate concerns.

The solution to the problems was never going to be the aggressive approach of, in effect, tearing up an international treaty that the Prime Minister and Ministers had negotiated and signed. Not only would it not work but it would signal to the world that the UK could not now be trusted to keep its word. That is a dangerous position to be in when we have to negotiate post-Brexit trade deals.

It is no surprise that, during our long and at times passionate debate on the Second Reading of the Northern Ireland Protocol Bill, the key questions from across the House were: why were Ministers not at the negotiating table trying to resolve legitimate outstanding issues with the protocol, rather than standing at the Dispatch Box trying to defend the unilateral tearing up of that binding international treaty? Why were the Government not engaging effectively with unionists’ concerns? Why were they not listening to businesses about the need for common sense, clarity and honesty? Why did the Government negotiate and sign the treaty, given its failings?

On a recent visit to Northern Ireland with Keir Starmer and Peter Kyle, businesses had a common message for us. They had different concerns about the protocol, but they all wanted to make it work and they all had suggestions of how, through negotiation, changes could be made that would minimise problems. My party has always said that if the Prime Minister were serious about negotiating a deal with our partners in the EU, we would back him. So we welcome the Prime Minister’s Statement and the publication of the Windsor Framework announced by Mr Sunak and President von der Leyen. It proves that the complex legal and trade issues are best resolved through diplomacy, not unilateral action or headline-seeking bluster. We welcome the Prime Minister’s change of approach.

We also welcome that Mr Sunak has now, as part of the agreement, finally committed not to proceed with the Northern Ireland Protocol Bill. We will never know how much sooner this new framework could have been agreed if the time and energy put into that Bill had been used instead to focus on negotiations from the beginning.

[Lord Lilley (Con)]

My Lords—

[Baroness Smith of Basildon (Lab)]

The noble Lord heckles me from a sedentary position. I suggest that he should apologise to those who have had to deal with these negotiations to change the protocol that he supported. Had he not—

[Lord Lilley (Con)]

My Lords—

[Baroness Smith of Basildon (Lab)]

No, I am not giving way. I am not prepared to give way to the noble Lord who tried to heckle me from a sedentary position. He will have the opportunity to ask questions later. If he wants to heckle, he should understand that people respond to heckles like that. We just do not know—

[Lord Lilley (Con)]

My Lords—

[Baroness Smith of Basildon (Lab)]

No, I am not giving way, and he should not heckle. He should behave in this House; he has been here long enough.

How much sooner could this new framework have been agreed if the time and energy put into the Northern Ireland Protocol Bill had been put into negotiating the framework? The outline of a deal has been clear for months. Business organisations have been crying out for certainty for even longer, not only because of short-term stock issues or the burdens of additional paperwork but because the uncertainty was creating systemic problems on the ground. A lack of clarity on trade terms, both within the UK internal market and with the EU, was extremely challenging to those seeking to attract investment into Northern Ireland’s economy.

As the detail of the agreement is examined, debated and challenged, we urge the Prime Minister to be honest about the compromises that have had to be reached —compromises made in the best interests of Northern Ireland and the UK as a whole.

When arguing against the protocol, a key issue raised by the DUP, as we heard in yesterday’s debate on the Northern Ireland executive formation Bill, is the democratic deficit caused by the protocol. Those concerns must be understood but, as my noble friend Lord Murphy of Torfaen, who has considerable experience on this issue, asked the House yesterday, is there not a bigger democratic deficit in the people of Northern Ireland not having a functioning Assembly or Executive? Crucial decisions are either not being taken or being taken by civil servants rather than Ministers. Meanwhile, the people of Northern Ireland are not being served properly in the face of a cost of living crisis affecting the entire UK. If we are making the case that the Good Friday agreement is undermined by the protocol, we must understand that the absence of those political and related institutions is also breaching the agreement.

The tone of DUP leader Jeffrey Donaldson’s comments yesterday, when he said he would examine the detail of the new framework, is welcome, as is the Prime Minister’s commitment to giving Northern Ireland’s political parties the time and space for their own deliberations and to address any points raised. This new agreement should provide a path through the political stalemate and towards the restoration of power-sharing, even if that is not immediate. In this 25th anniversary year of the Good Friday agreement, I hope we can move forward in a spirit of co-operation rather than seeking more negotiations.

The Windsor Framework will not in isolation solve all Northern Ireland’s problems, nor completely reset the UK’s relationship with the EU. Beyond the protocol, the Government are pressing ahead with the revocation of vast swathes of retained EU law at the end of this year. Such a step would likely have implications for the trade and co-operation agreement, which relies on minimum standards in several areas. We accept that the Government want a framework for replacing retained EU law and that we need to establish the future status of laws carried over from our time in the European Union.

However, having sought the Windsor Framework to provide certainty for businesses in Northern Ireland, it is counterintuitive to create uncertainty for businesses across the whole UK by introducing a regulatory cliff edge at the end of this year. Surely it is illogical, impractical and reckless to allow potentially important pieces of law to fall off the statute book by default because a department lacks the capacity to identify and rewrite them in the next 10 months. Perhaps the Leader can help me on this. Was it discussed with the Commission President yesterday? Can he now look again at our common-sense and pragmatic approach to review the process of existing retained law?

In conclusion, this important deal may not be perfect, but it represents a significant step forward. In welcoming it, we should pause for a moment to consider the wider context. For the past six and a half years, the at times toxic debate around Brexit, both in Parliament and in the wider country, has cast a shadow over our politics and civic debate. One of the worst aspects has been that the expression of any doubt about the process, let alone the outcome, has generated abuse and false accusations of not respecting the referendum. At the very outset of our debates, I said that the process and delivery of Brexit should not be led by those who had no doubt, because it is through doubt that we have challenge. It is through challenge that we have scrutiny and through scrutiny that we get better decisions and better legislation. The Prime Minister’s Statement is an admission that the Government made mistakes in negotiating and signing the protocol, and that there was a lack of honesty. We welcome today’s Statement. As we move forward, this should be an opportunity to reset our politics.

[Lord Newby (LD)]

My Lords, I too thank the Leader for repeating this very long Statement. My principal emotion on hearing that an agreement had been reached and on reading the documentation was overwhelmingly one of relief. I suspect that this feeling is shared on a widespread basis across the House. For months the wrangling over the protocol has taken up a huge amount of time and political capital. It preoccupied your Lordships’ House with the Northern Ireland Protocol Bill and acted as a blockage to constructive engagement between the UK and the EU on a range of other issues that had absolutely nothing to do with the protocol itself.

The Windsor framework represents an outbreak of common sense on both sides and it should bring great relief to many in Northern Ireland who were worried about the practical costs of the previous trading arrangements or what they saw as threats to the Good Friday agreement. The Prime Minister and other Ministers involved in securing this agreement are therefore to be heartily congratulated on achieving it. It would perhaps be churlish to point out, however, that the only reason all this effort was needed, and that all the contortions required to get to today’s position were necessary, was the deeply flawed original agreement, an agreement enthusiastically supported at the time by those who have now fundamentally renegotiated it. So I shall not dwell on that point today.

On the actual contents of the agreement, the only aspect which raises an immediate warning flag to me is the Stormont brake. If it is indeed used in only exceptional circumstances, that is one thing; but if it came to be used regularly, it could in itself lead to serious instability and uncertainty. I know that this issue is of particular concern to my colleagues in the Alliance Party. Having had an initial brief meeting today, they have asked to see the Prime Minister again to discuss this in detail. I hope the Leader can give me an assurance that the Prime Minister will not now simply be spending a lot of time with the DUP but will equally meet with the other parties in Northern Ireland to discuss any outstanding issues they might have.

In the short term, however, yesterday’s agreement will bring relief for many people in Northern Ireland and will hopefully, one would have thought, lead to a rapid resumption of the Northern Ireland Executive. This, though, is entirely down to the attitude taken by the DUP. We have heard much from them about the democratic deficit caused by the protocol, but as the noble Baroness, Lady Smith, pointed out, the democratic deficit caused by the continued absence of an Assembly is surely even more pressing for the daily lives of the population in Northern Ireland. To make an obvious point, if the Stormont brake is to rectify the democratic deficit, there needs to be an operational Administration in Stormont to pull it, so I hope the DUP will now allow the Assembly to function once again without further delay.

Beyond this, we need to use this outbreak of civility and the commitment by the Government and the EU to, in the words of the Command Paper,

“a positive, constructive relationship as partners”

to serve as a reset of our overall relationship with the EU, so that we can begin to mitigate some of the other costs of Brexit. It is, for example, welcome that the EU is now prepared to unblock the UK’s participation in the Horizon programme. This is long overdue, and I hope the Government grasp this opportunity with both hands, but this should surely be only the start. If it were possible, following the precedent of this agreement, to remove many of the costly barriers to trade with mainland Europe itself, there would be an even greater benefit for the economy as a whole than sorting out the protocol. If, for example, much of the red tape created by the TCA could be removed, small businesses, fishermen and farmers could trade with the EU at much lower cost. With a spirit of good will, the problems facing travelling artists could be mitigated, the lack of comprehensive financial services arrangements could be rectified and the many remaining issues on immigration between the UK and EU could be addressed in a serious manner.

This agreement offers the prospect that, if the EU believes that the UK is acting in good faith and can be a reliable partner, we can make progress across a much broader range of issues. Reaching agreement on the Northern Ireland protocol is a good start, but there is a lot more to do.