Beyond Brexit: Institutional Framework (EUC Report)

Lord Jay of Ewelme Excerpts

Monday 6th December 2021 Grand Committee

[Lord Jay of Ewelme (CB)]

My Lords, I speak today as a member of your Lordships’ European Affairs Committee and chair of the Sub-Committee on the Protocol on Ireland/Northern Ireland.

I want to focus my remarks today—it is of course the centenary of the signing of the Anglo-Irish agreement on 6 December 1921—on Northern Ireland. Although the reports before us on services and the institutional framework are extremely important, they are of less relevance to Northern Ireland than the report on the trade of goods, so most of my remarks will relate to that report. However, I must say, the focus is rather different for Northern Ireland and Great Britain than for the United Kingdom and the European Union. How do we ensure that there is no physical border between the Irish Republic and Northern Ireland without leading to an unacceptable border between Great Britain and Northern Ireland?

The sub-committee on the Northern Ireland protocol was established in the spring of this year as a sub-committee of the European Affairs Committee, chaired by my noble friend Lord Kinnoull, so we are comparatively new. The members of the committee are, however, immensely experienced. A number of them are very active in today’s politics in Northern Ireland, and they span a wide range of political views. The committee published its initial report in July; it was debated here in the Moses Room in September. It was agreed by unanimity. That unanimity did not, of course, in any way disguise the different political views in the committee, but it did show that all members of the committee, whatever their political views, believe that the Government’s focus in negotiations on the protocol must be on the effects on all communities in Northern Ireland.

Since last summer, the committee has continued its scrutiny of the different provisions of the protocol and its operation. It is worth stressing that the protocol is indeed in operation, even if the implementation of certain provisions of it have been deferred. We looked first at Article 2 of the protocol, on individual rights. This is an important part of the protocol, even if it is often neglected through the focus on trade provisions. It is less relevant, however, to today’s debate, although I am glad that the Government have just replied to the committee’s letter on the subject, which the committee will consider later this month.

We have also considered the provision of medicines to Northern Ireland. This is an issue that affects everyone in Northern Ireland, regardless of their views on Brexit, the protocol or the constitutional status of Northern Ireland. No matter what your political view, if you cannot get the medicines you need, you are vulnerable. The committee took evidence from representatives of the pharmaceutical industry in October and wrote to the noble Lord, Lord Frost, last month. In its letter, the committee highlighted industry concerns over the cost and operational impact of the protocol; the scale and very real risk of product withdrawal; the limited scope for the cross-border supply of medicines on the island of Ireland; the analysis of the impact of the extension of the grace period for medicines; the EU’s non-paper on medicines; and the proposals in the Government’s Command Paper. The committee noted industry’s views that, ideally, medicines should be removed from the scope of the protocol, but with the important proviso that this or any other solution must be on the basis of agreement between the United Kingdom and the European Union.

I note recent comments by Vice-President Šefčovič expressing confidence that a solution on medicines can be reached, possibly before Christmas. This is a crucial issue for the people of Northern Ireland. It would be helpful to have the Minister’s views on the position now in the talks between the United Kingdom and the European Union, and on the Government’s response to Vice-President Šefčovič’s statement that the EU is ready to take unilateral steps to address the issue if necessary.

Two other issues have been at the front of the committee’s minds this autumn: Article 16 and the democratic deficit in Northern Ireland. The committee’s work this autumn has been against the background of the Government’s stated willingness to invoke Article 16 if necessary and their assessment that the circumstances exist to justify doing so. Last week, the committee held an evidence session with a panel of distinguished legal experts on the mechanics of triggering Article 16, the legal consequences of doing so and relevant precedents in other international agreements. The committee also explored other legal powers open to the UK and the EU to address the problems to which the protocol has given rise, the legal status of the grace periods now in operation, the implications of Article 10 on state aid and the role of the European Court of Justice. The committee will be looking at these issues further in the coming weeks.

Meanwhile, does the Minister agree that there is a marked gap between the likely consequence of Article 16—more negotiations between the UK and the EU, if in a rather different context—and the widespread assumption that invoking it will somehow amount to an abrogation of the protocol as a whole?

Finally, the democratic deficit under the protocol, by which EU legislation applies to Northern Ireland without its explicit consent, and various proposals to enhance Northern Ireland’s voice and influence both within the United Kingdom and the European Union, were key themes of the committee’s July report. In October, the Commission published a non-paper on engagement with Northern Ireland stakeholders and authorities. The committee subsequently held a virtual seminar on the democratic deficit with politicians representing all viewpoints, from Westminster, Stormont, Dublin and the European Parliament, as well as academic experts and business representatives. The committee is continuing its interparliamentary engagement through meetings with the chairs and members of equivalent committees in the Northern Ireland Assembly and the Parliament in Dublin.

A less visible but extremely important part of the committee’s work in the context of the democratic deficit is the scrutiny of EU legislation applying to Northern Ireland under the protocol. I was much involved in scrutiny work while we were a member of the European Union, but nothing then was as important as looking hard now at the Explanatory Memoranda provided by the Government on directives, regulations and delegating implementing regulations that apply to Northern Ireland across a wide range of policy areas and to which, as I have said, the Northern Ireland authorities have not explicitly consented.

Our correspondence with Ministers and their replies are published on the committee’s website and copied to the chairs of the relevant committees in the Northern Ireland Assembly. We are grateful for the valuable feedback that we have received from them and from others such as the Ulster Farmers Union.

The quality of Explanatory Memoranda from government departments has improved since I drew the attention of the noble Lord, Lord Frost, to this issue in a debate here a few weeks ago. It is, however—and let me be polite—still variable. This is not an academic exercise. I know that departments are busy, but this issue is of serious concern to members of the committee, particularly those from Northern Ireland. The Government surely have a duty to provide a full account to Parliament through our committee of the implications of each new or amended law that applies to Northern Ireland. Can the Minister give an assurance that the Government will redouble their efforts to ensure that?